Rama Bhat S/O Padmanabha Bhat (Since Deceased by Lrs. and ors.) and Smt. Honnamma W/O Rama Bhat Vs. Vijaya Kumar S/O Subramanya Bhat, - Court Judgment

A.N. Venugopala Gowda, J.

1. The appellants were the defendants 1 and 2 in the Trial Court and respondents 1 and 2 in the first appellate Court. Respondents 1 and 2 herein were the plaintiffs in the Trial Court and appellants in the first appellate Court. 3rd respondent herein was defendant 3 in the Trial Court and respondent 3 in the first appellate Court. This second appeal has been preferred challenging the judgment and decree dated 25.7.2003 passed in R.A. 23/2001 by the Principal District Judge, Dakshina Kannada, Mangalore, allowing the appeal filed by the plaintiffs and modifying the judgment and decree dated 16.9.1988 passed In O.S. 23/1982 by the Civil Judge, Puttur. For the sake of convenience, the parties in this judgment will also be referred by their status in the suit/Trial Court.

2. Facts In a nutshell are as follows:

The case of the plaintiffs is that, they and the 3rd defendant are members of an undivided Hindu family, which owned immovable properties detailed in schedule A to the plaint, which Is their ancestral property. According to them, both themselves and 3rd respondent had 6/15th share inherited from Subbanna Bhat, late father of the 3rd defendant. Contending that, the release deed dated 28.8.1961 executed by 3rd defendant In favour of the 2nd defendant, insofar as the plaintiffs' 4/15th share is concerned is not binding on them and for a consequential decree of partition of the plaint A schedule properties into 15 fair and equal shares and allot them their 4 such shares and also to render accounts in respect of the income received by defendants 1 and 2 from the property, the suit was filed, which was contested by the defendants 1 and 2 by filing written statement. However they have not disputed the relationship between the parties, the deed dated 28.8.1961, having come into existence during the period of minority of the 1st plaintiff. Though, 3rdrd defendant in favour of defendant 2 insofar as plaintiffs' 1/15th share is concerned, is not valid and binding on the plaintiffs and that the plaint A schedule property be divided into 15 fair and equal shares with reference to good and bad soil and the plaintiffs be allotted one such share. Issue Nos. 10, 12 and 14 concerning the income from the suit property, the improvements effected by defendants 1 and 2 thereon and the liability or otherwise to pay mesne profits, were left open to be decided in the final decree proceedings.

3. The defendants did not challenge the said judgment and decree passed by the Trial Court either by filing the appeal or by preferring any cross objection. Plaintiffs alone preferred an appeal under Section 96 r/w Order 41 Rule 1 CPC in the first appellate Court. The first appellate Court after perusing the record and hearing the arguments on both sides, has allowed the appeal and has passed the decree holding that the plaintiffs are entitled to 4/15th share in the plaint A schedule properties and not 1/15th share as ordered by the Trial Court and the decree of the Trial Court was thus modified and leaving open the remaining portion of the Trial Court's decree undisturbed. This second appeal by the defendants is against the said judgment and decree.

4. This Court while admitting the appeal, has formulated for consideration, the following substantial questions of law:

(i) Whether the appellate Court committed error in not considering and adjudicating the plea regarding legal necessity and family benefit pleaded by the contesting defendants which would bind the shares of the plaintiffs alienated by the third defendant under relinquishment deed at Ex.P1 and that the declaration of share to plaintiffs in the suit property despite the valid execution of the release deed is bad in law?

(ii) Whether the appellate Court committed error in granting 4/15th share to the plaintiffs together is illegal and contrary to law when it is on record that the second plaintiff was not conceived and born on the date of Ex.P1?

5. I have heard Sri A. Keshava Bhat, learned Counsel for the appellants and Sri S.S. Sripathy, learned Counsel for respondents 1 and 2. 3rd respondent though served, has remained un-represented.

6. Sri S.S. Sripathy, contended that, in the absence of an appeal or cross objection to the decree passed by the Trial Court, by the defendants 1 and 2, the first appellate Court has not committed any error in not considering and adjudicating the plea regarding legal necessity and family benefit, inasmuch as, the finding and decree with regard to the lack of legal necessity and family benefit, adjudicated by the Trial Court remained unquestioned and the appeal in the first appellate Court was only by the plaintiffs for granting of correct quantum of share, which the Trial Court had failed to correctly quantify, in accordance with law.

7. Sri A. Keshava Bhat, though conceded the fact that, neither an appeal nor a cross objection to the decree passed in favour of the plaintiffs by the Trial Court was filed by the defendants/appellants in the first appellate Court, but contended that, since the decree of the Trial Court has merged in the decree passed by the first appellate Court, the second appeal is maintainable in respect of the decrees passed, both by the Trial Court and first appellate Court. Alternatively, learned Counsel contended that, Order 41 Rule 33 of the Code empowers the appellate Court, to pass or make such decree or order as the case may require, which power can be exercised by this Court notwithstanding that, the appeal or cross objection was not filed against the decree passed by the Trial Court.

8. Considering the rival contentions, a question as to the power of the second appellate Court under Section 100 CPC, to interfere with and reverse or modify the decree appealed against by the appellants in the absence of an appeal or cross objection under Order 41 Rule 1 or Order 41 Rule 22 of CPC and the scope of power conferred on the appellate Court under Rule 33 of Order 41 CPC, arises for consideration. Whether, without an appeal or cross objection by the appellants, can they seek setting aside of the decree of the Trial Court after holding that, there was no legal necessity and family benefit to alienate the share of the plaintiffs by 3rd defendant under the relinquishment deed Ex.P1, requires consideration?

9. It is not in dispute that, the Trial Court passed the decree for 1/15th share in favour of the plaintiffs, though their claim in the suit is for a decree of 4/15th share. So far as the granting of decree of 1/15th share is concerned, the defendants did not challenge the decree passed by the Trial Court. It is only the plaintiffs who filed the appeal, that too, to the extent as objected to In the appeal memo viz., regarding the quantum of share determined and decreed by the Trial Court and not otherwise. Admittedly, there was no cross objection by the defendants under Rule 22 of Order 41 CPC, in the said appeal. It is in that context, the first appellate Court raised the point for consideration, viz., 'whether the impugned decree is liable to be modified enhancing the share of plaintiffs/appellants' share from 1/15th to 4/15th, in the plaint A schedule property''. Having examined the record and having found that the appeal requires to be allowed granting decree for enhanced share, the impugned judgment and decree has been passed. In this appeal memorandum, the appellants have stated as follows:

4. Though the decree of the Trial Court was incorrect, the appellants did not file any appeal since the quantum of share allotted was minute. The appellants gave up their claim instead of fighting ruins litigation amongst closest relatives.

(underlining Is by me)

The prayer in this second appeal reads as follows:

Set aside the judgment and decree of the Principal District Judge, D.K., Mangalore, dated 25th July 2003 in R.A. No. 23/2001, wherein the learned District Judge has partly allowed the appeal by modifying the judgment and decree of the Civil Judge and JMFC at Puttur, D.K., dated 16th September, 1988. In O.S. No. 23/82.

10. Though grounds have been raised In this appeal memorandum on the findings of both the Trial Court and the first appellate Court, in view of the aforesaid statement and objection raised by the learned Counsel for plaintiffs, whether, the appellants without challenging the decree passed by the Trial Court can also challenge the decree of the Trial Court in the second appeal, requires to be considered. Section 96 CPC makes provision for appeal being preferred from every original decree. The appeal can be filed by an aggrieved person, prejudicially or adversely affected by the decree. The respondent in the appeal, though he may not have filed an appeal from any part of the decree impugned, may still support the decree to the extent to which It is already in his favour by laying a challenge to a finding recorded in the impugned judgment against him, though he has neither preferred an appeal of his own nor taken any cross objection. The right to file cross objection under Rule 22 of Order 41 is the exercise of right to appeal, though in a different form. Appeal and cross objection both are filed against the decree and not against judgment or any finding recorded in the judgment, is the well settled position of law.

11. Sri S.S. Sripathy, relied upon the decision of the Privy Council in the case of Muhammad Khaleef Shirazi and Sons v. Les Tanneries Lyonnaises and Anr. reported in AIR 1926 PC 34, to contend that, an unsuccessful party, if had not appealed against the decree of the trial Judge decreeing the suit in part and has allowed the decree and is content with the decree passed, the decree of the Trial Court cannot be challenged in the second appeal, the cause of action for which, is not the decree passed by the Trial Court, but the decree passed only by the appellate Court. Learned Counsel contended that, the second appeal can be only against that part of the decree of the first appellate Court, wherein, the share has been enhanced from 1/15th to 4/15th and not against the decree of the Trial Court. In the said decision, the Privy Council considering the contention of a similar nature, has held as follows:

As to the objection especially raised by the learned Counsel for Marret, that as the plaintiffs had not appealed against the decree of the trial Judge dismissing the suit, excepting as to costs against Marret, no appeal lay against him, their Lordships have been referred to the Code of Civil Procedure, Order 41, Rule 33: AGangadhar v. Banabashi (1) and Bhaidas Shivdas v. Bai Gulab (2). Their Lordships think that this appeal to His Majesty in Council, in so far as Marret is concerned, is In effect, an appeal direct to His Majesty in Council from the decree of the trial Judge, which is not allowable under the Code of Civil Procedure 1908, or under the Letters Patent of the High Court, and they hold that the Code of Civil Procedure 1908, Order 41, Rule 33 was not intended to apply to such an appeal, and they accordingly decide that the appeal, so far as Marret is concerned, should be dismissed, but without costs.

12. Sri S.S. Sripathy, also relied upon the Division Bench decision of this Court in the case of Jay Karnataka News Printers Ltd., and Ors. v. Syndicate Bank and Ors. reported in ILR 2001 Kar 312, to contend that, the power of the appellate Court under Order 41 Rule 33 CPC cannot be exercised to grant relief to a party who has neither preferred an appeal nor filed cross objection. In the said decision, after noticing the catena of decisions of Hon'ble Supreme Court, the scope of Order 41 Rule 22 was examined and the principles were identified, out of which, the important one reads as follows:

5. Respondent even though he has not appealed may support the decree on any other ground but If wants to modify it, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the Court like in appeal.

Noticing the contention that, even if Order 41 Rule 22 CPC was not available to a party, this Court in exercise of the power under Order 41 Rule 33, can pass such other decree or order, as ought to have been passed by the decision in the trial Court and after referring to the law laid down by the Hon'ble Supreme Court, it was held as follows:

The power vested in the appellate Court under Order 41 Rule 33 has to be sparingly used and only in cases where the decree passed by the Court below is so patently erroneous that the appellate Court cannot countenance the same, even in the absence of an appeal filed against it. In other words, something more than the mere possibility of a second view alone would justify resort to that power.

13. Sri. S.S. Sripathy, next relied upon the decision in the case of Hind Estate Limited v. Grant James Limited reported in : AIR1953Cal20 , wherein, with regard to Rule 33 of Order 41 CPC, It has been held as follows:

16. ...It is, however, firmly established, at least so far as this Court is concerned, that Order 41, Rule 33 applies only to cases where one or some at least of the plaintiffs or defendants have appealed and in such a case the appellate Court can Interfere in favour of any or all of the non-appealing respondents or respondents who have not preferred any cross-objections. Where there is a single respondent and he has not appealed, nor has he filed any cross-objection, Order 41, Rule 33 does not empower the appellate court to interfere in favour of such a respondent. If authority for this proposition Is needed, it will be found in the cases of Dinanath Chandra v. Sm. Sudhanyamoni Dasi 39 C.W.N. 420 and Farok Ahmed Meah v. Lalit Mohan 69 Cal. L.J. 385. One should have thought that this proposition had now become a commonplace of judicial procedure, but it appears that it still requires to be repeated.

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22. As the Hind Estate Ltd. v. Ansar Ahmad Civil Revision Case No. 3266 of 1951, to which I have already referred, so in these cases, a question was raised as to the effect of Section 5 on para. 4 of Sch. A. Section 5, as I have already stated, provides that no provisions of the Act shall apply to leases taken after 1-12-1941 which are leases for not less than 15 years and which are not terminable at the will of the landlord. If no provisions of the Act apply to such leases, it seems to be reasonably clear that there can be no question of any standard rent in respect of them, since the standard rent is creature of the Rent Act. Paragraph 4 of Sch. A, however, requires the Rent Control Authorities first to determine the standard rent payable by the intermediate tenant in respect of the premises concerned. But if such intermediate tenant be a tenant holding under a lease which comes under Section 5, difficulty obviously arises as regards determining the standard rent payable by him. The question raised in these cases was in what way that difficulty was to be solved.

23. The Act contains two provisions, laying down in respect of two kinds of leases, that nothing in the Act shall apply to them. One provision is a proviso to Section 3 which deals with leases granted before 1-12-1941, which are leases for a specified period, but the period of which has not yet expired. The other provision is Section 5 which deals with lease of the particular kind which, I have already referred to, granted after 1-12-1941. Paragraph 4 of Sch. A provides for the case where the intermediate tenant holds under a lease coming under the proviso to Section 3, but it makes no reference to a case where the lease may be one coming under Section 5. Whether this absence of a reference to Section 5 in para. 4 of Sch. A is an inadvertent omission which a Court would be entitled to make good by way of a judicial interpretation of the paragraph or whether the omission is a deliberate one, made in pursuance of a legislative policy, is a question which requires careful consideration.

Even if it be not possible to import Section 5 into para. 4 of Sch. A by way of supplying an omission, it may still have to be considered whether the omission cannot be filled up by applying the provisions of Section 9(1)(g). That section provides that where no provision of the Act for fixing the standard rent applies to any premises, the standard rent would be determined at the rate which is fair and reasonable. It is at least a question whether, if the standard rent of lease coming under Section 5 cannot be determined otherwise, it cannot still be determined by applying the provision of Section 9(1)(g). But the obvious objection to that solution is that if nothing in the Act applies to a lease coming under Section 5, Section 9(1)(g) does not apply either.

14. Sri A. Keshava Bhat, learned Counsel, relying upon the decision in the case of Ravindra Kumar Sharma v. State of Assam and Ors. reported in : AIR1999SC3571 contended that, filing of the cross objection is optional and not mandatory. In the said decision, the appellants/plaintiffs had filed a suit for damages for malicious prosecution against respondents/defendants. A plea of malicious prosecution where damages are sought for pecuniary loss and also damages for non-pecuniary loss was raised. It was held by the High Court that there was malice etc., on the part of the defendants and granted a decree for pecuniary losses, but did not grant any decree for non-pecuniary losses, as no proper evidence was adduced in that behalf. When appealed in the Hon'ble Supreme Court for damages seeking a decree for non pecuniary loss, it was held that, the respondent/defendant, even though has not filed any appeal or cross objection in regard to the adverse finding as to malice and against the decree for pecuniary loss in-respect of B and C schedules, can attack the finding as to malice and support the decree of dismissal of suit so far as the A schedule non-pecuniary losses are concerned. It was held that filing of cross objection against adverse finding was not necessary. The decision therein was concerned with the adverse finding and not challenge to the decree passed and hence has no application to the instant case.

15. Sri A. Keshava Bhat, next relied upon the decision of the Hon'ble Supreme Court in the case of Panna Lal v. State of Bombay and Ors. reported in : [1964]1SCR980 with regard to the scope of the provisions contained under Rules 22 and 33 of Order 41 CPC and the power of the appellate Court to grant relief. That was a case wherein it was held that, Rule 33 of Order 41 was held to be applicable not only between the appellant and the respondent but also as between a respondent and a respondent and it was held that, it empowers the appellate Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal that also to give such other relief to any of the respondents as the case may require. In the said decision, the factual position was totally different and in my view, the decision has no application to the instant case.

16. Sri. A. Keshav Bhat, next relied upon the decision in the case of Mahant Dhangir and Anr. v. Shri. Madan Mohan and Ors. reported in : [1988]1SCR679 , with regard to the power of the appellate Court. The ratio of the said decision was considered by the Division Bench of this Court in the case of Jay Karnataka News Printers Ltd., (supra), the principles applicable has already been noticed supra.

17. Reliance was next placed by Sri Keshava Bhat on the decision of the Hon'ble Supreme Court in the case of K. Muthuswami Gounder v. N. Palaniappa Gounder reported in : AIR1998SC3118 with regard to the scope of the powers of the appellate Court under Rule 33 of Order 41. In the said decision, it was held as follows:

12. Order XLI, Rule 33 enables the appellate Court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed an appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are before the Court and the question raised properly arises one (out) of the judgment of the lower Court and in that event the appellate Court could consider any objection to any part of the order or decree of the Court and set it right. We are fortified in this view by the decision of this Court in : [1988]1SCR679 . No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order LXI. Rule 33, CPC and each case must depend upon its own facts. The rule enables the appellate Court to pass any order/decree which ought to have been passed. The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings, ordinarily the appellate court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal and this rule holds good notwithstanding Order XLI, Rule 33, C.P.C. However, in exceptional cases the rule enables the appellate court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. The power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeals.

(underlining is by me for emphasis)

It is clear from the ratio of the decision that, ordinarily the appellate Court must not vary or reverse a decree in favour of a party who has not preferred any appeal.

18. Sri A. Keshava Bhat, next replied upon the decision of the Hon'ble Supreme Court in the case of S. Nazeer Ahmed v. State Bank of Mysore and Ors. reported in : AIR2007SC989 to contend that, filing of cross objection by respondents is necessary only respect of relief negatived and that Rule 33 of Order 41 enables appellate Court to pass any decree that ought to have been passed by the Trial Court or grant any further decree as may be required and the power could be exercised notwithstanding that the appeal was only against a part of the decree and could even be exercised in favour of respondents, though respondents might not have filed any appeal or objection against what has been decreed. In the said decision, it has been held that the respondent 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. 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 objection challenging a particular finding that is rendered by the Trial Court against him when the ultimate decree itself is in his favour. It was made clear that a memorandum of cross objections 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. Thus it is clear that for supporting the decree passed by the Trial Court, it is not necessary for the respondent in the appeal to file memorandum of cross objection challenging a particular finding, but cross objection is needed if the respondent claims any relief which has been negatived to him. In the instant case, the suit had been decreed In part against the defendants/appellants. That decree ought to have been challenged by them by filing cross objection, if not an appeal. Hence, the decision instead of supporting the contention of the appellants, supports the contention of plaintiffs.

19. In the case of Banarsi and Ors. v. Ram Phal reported in : [2003]2SCR22 , wherein the appeal had arisen out of a suit for specific performance, the Hon'ble Supreme Court has held that, if the impugned decree is partly in favour of the appellant and partly in favour of the respondent, it was for the respondent to file an appeal or take cross objection against that part of the decree which is against him, if he seeks to get rid of the same though that part of the decree which is in his favour, he is entitled to support without taking any cross objection and that there is no change of law, post amendment to, after the amended Act 104/1976 with effect from 1.2.1977 to CPC. Considering a case relating to suit for specific performance, wherein either the main relief or alternative relief can be granted and the effect of not challenging one of the reliefs to which suit is decreed, either by filing an appeal or cross-objection, it was held as follows:

12. The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross-objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post - 1976 amendment. In a suit seeking specific performance of an agreement to sell governed by the provisions of the Specific Relief Act, 1963 the Court has a discretion to decree specific performance of the agreement. The plaintiff may also claim compensation under Section 21 or any other relief to which he may be entitled including the refund of money or deposit paid or made by him in case his claim for specific performance is refused. No compensation or any other relief including the relief of refund shall be granted by the Court unless it has been specifically claimed in the plaint by the plaintiff. Certainly the relief of specific performance is a larger relief for the plaintiff and more onerous to the defendant compared with the relief for compensation or refund of money. The relief of compensation or refund of money is a relief smaller than the relief of specific performance. A plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right, to file an appeal against the original decree if the relief of specific performance Is refused and other relief Is granted. The plaintiff would be a person aggrieved by the decree In spite of one of the alternative reliefs having been allowed to him because what has been allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or any other relief being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an appeal of is own or by taking cross-objection.

13. We are therefore, of the opinion that in the absence of cross-appeal preferred or cross-objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree In the manner in which it has done. Within the scope of appeals preferred by the appellants the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent In its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not only to set aside the decree to the extent to which it was to favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection.

Considering the contention with regard to the power conferred by Rule 33 of Order 41 CPC, it was held was follows:

15. ...Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or Interfered by the appellant Court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either Injustice would result or inconsistent decrees would follow. The power Is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived: and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be grated in favour of the respondent by the appellate Court exercising power under Rule 33 of Order 41.

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21. In the case before us, the Trial Court found the defendant not entitled to decree for specific performance and found him entitled only for money decree. In addition, a conditional decree was also passed directing execution of sale deed if only the defendant defaulted any paying or deposing the money within two months. Thus to the extent of specific performance, it was not a decree outright; it was a conditional decree. Rather, the latter part of the decree was a direction in terrorem so as to secure compliance by the appellant of the money part of the decree in the scheduled time frame. In the event of the appellant having made the payment within a period of two months, the respondent would not be, and would never have been, entitled to the relief of specific performance. The latter decree is not inseparably connected with the former decree. The two reliefs are surely separable from each other and one can exist without the other. Nothing prevented the respondent from filing his own appeal or taking cross-objection against that part of the decree which refused straightway a decree for specific performance in his favour based on the finding of comparative hardship recorded earlier in the judgment. The dismissal of appeals filed by the appellant was not resulting in any inconsistent, iniquitous, contradictory or unworkable decree coming into existence so as to warrant exercise of power under Rule 33 of Order 41. It was not a case of Interference with decree having been so interfered with as to call for adjustment of equities between respondents inter se. By his failure to prefer an appeal or to take cross-objection the respondent has allowed the part of the Trial Court's decree to achieve a finality which was adverse to him.

22. For the foregoing reasons we are of the opinion that the first appellate Court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The Interference by the first appellate Court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have Interfered to correct the error of law committed by the first appellate Court.

(emphasis supplied by me)

20. I do not find any merit in the contention of Sri A. Keshava Bhat that, once the Trial Court decree merged in the decree passed by the first appellate Court, even the decree passed by the Trial Court can be challenged in second appeal. It Is true that, a merger of the Trial Court decree with decree passed by the first appellate Court, has taken place. The Trial Court had granted a limited share or decreed the suit in part for limited relief even though the plaintiffs had claimed a larger relief. Dissatisfied with the quantum of share granted by the decree of Trial Court, the plaintiffs filed the appeal in the first appellate Court to modify the decree passed by the Trial Court to the extent of quantification of share only and to grant them 4/15th share as against 1/15th share granted by the Trial Court. The appellate Court having examined the grievance of the plaintiffs with regard to the quantification of share and having found that they are entitled to the decree of 4/15th share i.e., much more than what the Trial Court has quantified and decreed, has granted 4/15th share. The granting of 1/15th share by the Trial Court remained unchallenged and the challenge to it was given up by the defendants and hence cannot be revived in the second appeal. Admittedly, the defendants were aggrieved even with the granting of decree of even 1/15th share, which ought to have been appealed against or objected to by them, but they permitted the decree granting of 1/15th share to achieve finality. To grant 1/15th share, the Trial Court held that, the alienation by defendant No. 3 in favour of defendant No. 2 under Ex.P1 was not for legal necessity and family benefit and hence not binding on the plaintiffs. Hence, the same cannot be reversed in second appeal. Second appeal under Section 100 CPC shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the case involves a substantial question of law. Thus what can be appealed under Section 100 CPC is the decree passed in appeal. Here, it is not a case of either reversing the decree passed by the Trial Court or confirming the decree passed by the Trial Court, but is only a case of modification of the decree of the Trial Court granting a decree quantifying the share of the plaintiffs at 4/15th share as against l/15th share granted by the Trial Court. Even if the decree passed by the first appellate Court is set aside, still the decree passed by the Trial Court which was not challenged by the defendants in the first appellate Court, snail remain undisturbed and Is separable from the decree passed by the first appellate Court. By setting aside the decree passed by the appellate Court and by dismissing the appeal filed in the first appellate Court by the plaintiffs, the decree passed by the Trial Court in. favour of the plaintiffs still remains undisturbed. Hence, the contention of merger canvassed by the learned Counsel is devoid of merit and fails.

21. Since the defendants against whom the Trial Court decreed the suit in part granting 1/15th share, was not challenged by them by filing an appeal or a memorandum of cross-objection in the first appellate Court and the appeal before the first appellate Court was only against not granting of the decree for 4/15th share claimed by the plaintiffs and that the finding of the Trial Court with regard to the lack of legal necessity and family benefit was not under challenge, the first appellate Court has not committed any error in not considering and adjudicating the plea regarding legal necessity and family benefit, finding of the Trial Court with regard to which, had not been contested by the defendants and had allowed the finding to become final, based on which the Trial Court decreed the suit in part. If the first appellate Court had interfered with the partial decree granted by the Trial Court, without there being a challenge to It, it would have reduced the plaintiffs to a situation worse than what they would have been, if they had not appealed before the first appellate Court. It is not an exceptional case where the decree of the trial is, so patently erroneous and cannot be countenanced at ail even in the absence of an appeal or cross-objection being filed against it. Hence, the contention of Sri. A. Keshava Bhat that, second appeal can lie even against that part of the Trial Court decree which was not challenged before the first appellate Court, in exercise of the powers under Rule 33 of Order 41 CPC is against the settled principles of law and Is not tenable. The substantial question of law (I) is answered holding that, in the said background, the lower Appellate Court has not committed any error, in not considering and adjudicating the plea regarding legal necessity and family benefit, since such a plea was not canvassed before it by the defendants and did not arise for its consideration.

22. Re. substantial question of law (II):

The family tree and the members sued is as hereunder: SUBBANNA BHAJ (Sr.) (Propositus)--------------------------------------------------------------| | |Saraswathi Laxmi LaxmiWife-1 Wife-2 Wife-3| | || | |Bhima Bhat Subbanna Bhat 1. Honnamma(Defendant-3) (Defendant-2)| || || Rama Bhat| (Defendant-1)| (Husband of Defendant-2)1. Vijayakumar2. Vishweshwara 2. Lalitha(Plaintiffs 1 and 2)

The relationship of parties In terms of the above genealogical tree is not in dispute. 1st plaintiff was born on 10.5.1961. 2nd plaintiff was born on 2.3.1964. According to the parties, Subbanna Bhat (Sr.,) has passed away during 1960. The release deed in question (Ex.P1/D1) is dated 28.8.1961. Thus there is no dispute that the 2nd plaintiff is an after born son i.e., after execution of Ex.P1/D1 by the 3rd defendant in favour of his sister, the 2nd defendant. At the time, the father of the 3rd defendant died, he was survived by the first son Bhima Bhat i.e., born to first wife Smt. Saraswathi and the 3rd defendant born to second wife Smt. Laxmi. Third wife Smt. Laxmi has only two daughters (1) Honnamma, the 2nd defendant and (2) Lalitha. Thus altogether 5 persons have succeeded to the estate of Subbanna Bhat (Sr.), who had l/3rd share in the family properties. On the demise of Subbanna Bhat (Sr.), his two sons Bhima Bhat and Subbanna Bhat (D3), surviving wife Smt. Laxmi (3rd wife) and her two daughters Honnamma and Lalitha have got right to share the l/3rd share of Subbanna Bhat (Sr.) in equal proportions. Hence, each one of them are entitled to 1/15th share in the l/3rd share held by Subbanna Bhat (Sr.) In the family properties.

23. Sri A. Keshava Bhat, in fact, did not dispute the quantification of shares. His contention is that, the 2nd plaintiff who is an after born son, i.e., who was not even conceived and who was not in the womb of his mother, is not entitled to any share and maintain the suit. Learned Counsel made submission with reference to Section 20 of the Hindu Succession Act, 1956 which provides that, a child who was in the womb at the time of death of an intestate and who is subsequently born alive shall have same right to inherit to the intestate and if he or she had been born, before the death of intestate, the inheritance shall be deemed to vest in such a case with effect from the date of death of the intestate. Learned Counsel made reference to the decision of the Hon'ble Supreme Court in the case Guramma Bhratar Chanbasappa Deshmukh and Ors. v. Mallappa Chanbasappa and Anr. reported in : [1964]4SCR497 and to the decision in the case of Basayya Shivabasayya v. Baslingayya Channayya and Ors. reported in AIR 1948 Bom 150. Learned Counsel also referred to the commentary on Hindu Law by the learned author Sri S.P. Gupthe, more particularly, Article 14 in support of his contention.

24. Per contra, Sri S.S. Sripathy, learned Counsel contended that, even an after born son has a right to challenge the alienation made by his father and relied upon the decision in the case of Shri 108 Puja Pad Udit Panch Parmeshwar Panchaiti Akhara Udasi Nirwani v. Surajpal Singh alias Chhedi Singh and Ors. reported in and the decision in the case of Kumaraswami Mudaliar and Ors. v. Rajamanikkam Udayar and Ors. reported in : AIR1966Ker266 . Learned Counsel contended that, though the 2nd plaintiff who is born after 2 years and 5 months of execution of Exs.P1/D1, is also entitled to claim a share on the ground that, if a partition takes place in the family after his birth, he Is entitled to claim and get allotted a separate share.

25. In the case of M.S. Subbukrishna and Ors. v. Smt. Parvathi and Anr. reported in ILR 2007 KAR 3939, a Division Bench of this Court with regard to the scope of Section 20 of the Hindu Succession Act 1956 has held as follows:

16. From a reading of Section 20 of the Act and the law laid down in different decisions referred to above, in our considered view, the following principles will emerge:

i) A child In the womb is entitled to for a share in co-parcener property of an undivided Hindu joint family.

ii) The child is entitled for a share in the joint family property when born alive and not otherwise.

iii) On behalf of the child in the womb no partition suit is maintainable.

iv) In case of a partition of the joint family property by the father amongst his sons, even a son born after a partition arrangement can challenge the partition if the father has not retained separate share for himself exclusively.

v) In a partition if a share is allotted to the father, a son begotten or born after the partition is not entitled to have the partition reopened and to claim redistribution of the shares. But a child begotten after partition is entitled to succeed to the father's share and to his separate or self-acquired property to the exclusion of divided sons.

(emphasis supplied by me)

26. The decisions cited by the learned Counsel on both sides are with regard to the right of a child In the womb, being an after born son, to challenge the alienation made by the father. In the decisions cited by Sri S.S. Sripathy, it has been held that an after born son has a right to challenge the alienation made by his father. But there is no allotment of any separate share to the after born son. Hence are not applicable.

27. A notional partition has taken place during the life time of Subbanna Bhat (Sr.). He has died with his share separated, which devolved upon the other surviving co-parceners, as on the date of his death. The 2nd plaintiff, who has born after the notional partition, is not entitled to have the partition re-opened and claim re-distribution of the shares. The plaintiff No. 2 is entitled to succeed to his father's share I.e., defendant 3, to the exclusion of divided sons, in terms of the principles enunciated in the decision in the case of M.S. Subbukrishna (supra). He has no right to question Ex.P1. Hence, the first appellate Court has committed an error in granting 4/15th share to the plaintiffs together. Since the 2nd plaintiff who was not even conceived by his mother, when the notional partition took place when Subbanna Bhat (Sr,.) passed away during 1960 or when the release deed i.e., Ex.P1/D1 was executed by defendant 3 in favour of defendant 2 and he having been born 2 years 5 months thereafter, is not entitled for allotment of share. Both the Courts below have not considered this aspect of the matter. Only to the said extent, there is an error. Hence limited modification of the impugned Judgment and Decree is called for. Substantial question of law (ii) is accordingly answered.

28. For the foregoing reasons, the appeal is liable to be allowed in part and I pass the following:

ORDER

(i) Appeal Is allowed in part;

(ii) Judgment and Decree passed in R.A. 23/2001 dated 25.7.2003 by the Principal District Judge, Dakshina Kannada, Mangalore, is hereby set aside. In modification of the said judgment and decree, it is held that the 1st plaintiff is entitled to 3/15th share in the plaint A schedule properties and not to 1/15th share, as ordered and decreed by the Trial Court. R.A. 23/2001 filed In the first appellate Court shall stand allowed to the said extent only.

(iii) The judgment and decree of the Trial Court stands modified to the extent that, the 1st plaintiff is entitled to 3/15th share in the plaint A schedule properties and the remaining portion of the judgment and decree passed in O.S. 23/1982 dated 16.9.1988, remains undisturbed.

In the facts and circumstances of the case, the parties are directed to bear their respective costs.