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2003 DIGILAW 349 (AP)

Garlapati Prakasam v. Garlapati Jaggaiah (died)

2003-03-05

B.S.A.SWAMY, B.SESHASAYANA REDDY

body2003
B. S. A. SWAMY, J. ( 1 ) AS the subject matter of all the three appeals is one and the same they are disposed of by this common judgment. ( 2 ) THE facts leading to filing of the suit in o. S. No. 24 of 1986 are that one Garlapati anthaiah had three sons namely Papaiah, rajaiah and Narsaiah. There was no evidence to show that Garlapati Anthaiah owned any properties or not but the fact remains that a vast extent of lands roughly 200 acres and buildings stood in the name of papaiah the eldest son of Anthaiah. Papaiah died in the year 1340 Fasli i. e. around 1930 and Rajaiah and Narsaiah pre-deceased papaiah. Papaiah had no male issues but had six daughters. Rajaiah had two sons by name Veeraiah and Anthaiah (hereinafter referred to as Junior Anthaiah ). Like wise, veeraiah died in the year 1944 issueless. After Papaiah s death his wife Laxmi narasamma started managing the properties held by Papaiah and she also died in the year 1952. Thereafter initially the lands were mutated in the name of Junior antaiah. It is also on record that Jaggaiah, s/o. Narsaiah filed an application on 19-4-52 objecting to the mutation extended in favour of junior Antaiah. While this application was pending before the Tahsildar, Bhongir junior antaiah died in the year 1954 survived by son Prakash (plaintiff herein ). Subsequently, the Tahsildar in his order dated 3-11-1955 held that since Record of Rights Regulation came into force and in Sec. , 17 of the regulation the word PATTEDAR was substituted with the word OCCUPANT and since occupant-wise data has been prepared he has taken the view that he need not give any importance to the succession cases and whomsoever name is shown in Col. 13 of the pahani against the survey numbers in the suit will be endorsed as occupant and owner of the land. With the above observation the file was closed by the Tahsildar. Subsequently after the introduction of A. P. Land Ceiling Reforms act, Jaggaiah (Defendant No. l) filed a declaration under the Act as karta of the joint family consisting of himself, his brother laxmaiah (Defendant No. 2) and his son. The land ceiling authorities allotted one unit each to himself, Laxmaiah and his son. Subsequently after the introduction of A. P. Land Ceiling Reforms act, Jaggaiah (Defendant No. l) filed a declaration under the Act as karta of the joint family consisting of himself, his brother laxmaiah (Defendant No. 2) and his son. The land ceiling authorities allotted one unit each to himself, Laxmaiah and his son. In the land ceiling proceedings Jaggaiah completely eliminated Prakash and no property was shown in his name. In those circumstances the plaintiff i. e. Prakash, s/o Late Junior Antaiah filed the suit seeking partition of the properties and claimed half share in the properties that falls to the share of Rajaiah since Papaiah had no children and he represents the branch of rajaiah since his brother Veeraiah predeceased Rajaiah, against Jaggaiah and laxmaiah the two sons of late Narasaiah. The written statement was filed by D-l (Jaggaiah) contending that all the properties are self acquired properties of Papaiah and by virtue of the Will executed by him in 1338 fasli he succeeded to the estate of late papaiah to the exclusion of all others in the joint family. D-2 filed written statement contending that himself and D-l are in the joint possession of the properties and at the same time denied any share to the plaintiff. On the above pleadings the court below framed the following issues: (1) Whether plaint A and B schedule properties are acquired by the garlapati Anthaiah father of the papaiah, Rajaiah and Narsaiah? (2) Whether the plaint A and B schedule properties are liable for partition among heirs of Rajaiah and Narasaiah i. e. , among the plaintiff branch and branch of defendants? (3) Whether the plaintiff A schedule and items 2 and 3 of plaint B schedule are self acquired properties of late Papaiah? (4) Whether late Papaiah executed Will deed in favour of his widow Laxmi narasamma and Defendant No. l and they become absolute owners after death of Papaiah? (5) Whether the suit is barred by limitation? (6) Whether the property is valued and the court fee paid is correct? (7) Whether the defendants 1 and 2 are in joint possession of plaint A and item 1 and 2 of B schedule? (8) To what relief the parties are entitled? ( 3 ) ON behalf of the plaintiffs P. Ws. l to 6 were examined and Exs. A-1 to A-6 were marked. (7) Whether the defendants 1 and 2 are in joint possession of plaint A and item 1 and 2 of B schedule? (8) To what relief the parties are entitled? ( 3 ) ON behalf of the plaintiffs P. Ws. l to 6 were examined and Exs. A-1 to A-6 were marked. On behalf of the defendants D. W. I to D. W. 3 were examined and Exs. B-1 to B-54 were marked. On perusing the entire material brought on record and afer hearing both the parties the court below believed the will Ex. B-11 said to have been executed by late Papaiah and held that Jaggaiah is entitled to enjoy the property to the exclusion of plaintiff as well as his brother laxmaiah. On issue No. 7 the court below held that both the defendants are not in joint possession of the suit schedule property and only D-l is in possession and enjoyment of the properties. Aggrieved by the said judgment and decree while plaintiff filed a. S. 1730/91 and D-2 filed A. S. 1448/91 to the extent the judgment and decree went against their interests. ( 4 ) IT also came to light that basing on the findings given by the court below stating that Laxmaiah is not entitled for any share in the property, Jaggaiah started denying any share to him and in those circumstances he too filed O. S. 36 of 1991. In O. S. 36 of 1991 the court below framed the following issues: (1) Whether the plaint scheduled properties are joint family properties of the plaintiff and defendant. If so, whether the plaintiff is entitled to half share and possession? (2) Whether the defendant is estopped contending that the plaintiff is not entitled to the share in the suit properties in view of the Ceiling declarations filed by the defendant admitting the joint ownership of the plaintiff and the defendant? (3) Whether the plaintiff is entitled for rendition of accounts? (4) Whether the plaint-scheduled properties are self acquired properties of the defendant? (5) Whether the suit is premature in view of the appeal on issue No. 7 in o. S. No. 24/86, pending in the hon ble High Court of Andhra pradesh. (6) Whether the suit is not maintainable in view of the principles of res judicata pleaded by the plaintiff and defendant? (7) Whether the suit is barred by limitation? (5) Whether the suit is premature in view of the appeal on issue No. 7 in o. S. No. 24/86, pending in the hon ble High Court of Andhra pradesh. (6) Whether the suit is not maintainable in view of the principles of res judicata pleaded by the plaintiff and defendant? (7) Whether the suit is barred by limitation? (8) Whether the plaint is under valued and not paid the court fee when separate possession is claimed by the plaintiff? (9) Whether the plaintiff has no cause of action to file the suit?plaintiff was examined as P. W. I and exs. A-1 to A-6 were marked and on behalf of defendant D. W. I was examined and exs. B-1 to B.-19 were marked. On considering the material placed on record, after appreciation of the evidence brought on record and also after hearing the learned counsel for both the parties, the earned subordinate Judge, Bhongir held against the plaintiff on all the issues and dismissed the suit. Hence A. S. No. 1186/94. ( 5 ) IN the light of the pleadings this court is called upon on to decide (1) Whether Papaiah held the properties as Karta of the joint family or in his individual capacity; (2) Whether the alleged Will said to have been executed by late Papaiah in 1338 Fasli is true and bona fide. ( 6 ) AS stated supra there is no evidence with regard to the properties held by antaiah (senior) and all the properties stood in the name of Papaiah. The plaintiff relied on Ex. A-5 registered mortgage deed executed by all the three brothers in favour of A. Narayana for purchase of Government musafirkhana and the mortgage deed whereunder seven malgis and one house at musafirkhana situated at Bhongir and adjacent to railway station were mortgaged. In this deed they have categorically stated that the properties are owned by them jointly and they are joint family properties. The other documents that were relied on were A-2, (Khasra Pahani 1954-55), A-5 (registered mortgage deed), A-6 C. C. of deposition given by the mortgagee before the Tahsildar while considering the objection filed by Jaggaiah for the mutation done in favour of junior Antaiah after the death of Laxmi Narasamma, wife of late papaiah. Countering the claim of the plaintiff D-l relied on Ex. Countering the claim of the plaintiff D-l relied on Ex. B-2 proceedings of Tahsildar in the year 1304 Fasli corresponding to the year 1894 where under the lease hold rights over banjara lands, were transferred from Kadam Nagaiah to garlapati Papaiah (late Papaiah) who is no other than his maternal uncle at his request. ( 7 ) IN this order it is stated that the leasehold rights were transferred in the name of late Papaiah in the absence of any evidence whatsoever that there is severance of status between the brothers since his father Anthaiah (senior) died long back, the presumption to be drawn is that the lease is for the benefit of the entire joint family but not in favour of Papaiah alone who is very much alive at that point of time. The other document is Ex. B-8 of the year 1886 AD. Dated: 9th Rabiul Awwal 1306 hijri (1886 ). Under this grant the Collector assigned an extent of 4,337 square yards of land in favour of Papaiah for construction of a residential house by collecting compensation for possession. Once again though the grant is in favour of Papaiah it cannot be said that the grant is given exclusively to Papaiah but not for the entire family. It is also in evidence that the house was constructed in the site and all the parties are living in different portions of the house which are shown as item Nos. l and 2 of the suit schedule. In fact plaintiff is residing in one portion of the house. ( 8 ) THE next document is Ex. B-42 whereunder the Second Collector and secretary Municipality, Bhongir gave permission to Papaiah to effect repairs to the house in 1311 Fasli corresponding to 1901 year. The reasoning given above is equally applicable to this document also and all the brothers are very much alive at the time when these transactions have taken place and no evidence whatsoever was placed on record to show that Papaiah made these acquisitions after the partition took place between the brothers. ( 9 ) THE next document relied on was ex. B-15, the order of Tahsildar dt. 3-11-1955 showing that Tahsildar having accepted the plea of Jaggaiah that he succeeded to the estate of Papaiah directed correction of entries in the Pahanis. ( 9 ) THE next document relied on was ex. B-15, the order of Tahsildar dt. 3-11-1955 showing that Tahsildar having accepted the plea of Jaggaiah that he succeeded to the estate of Papaiah directed correction of entries in the Pahanis. We have seen the order and there is no difficulty to hold that the Tahsildar did not decide the dispute with regard to succession, and he made this aspect very clear in his order. The Tahsildar simply relied on the entry in Col. No. 13 and treated Jaggaiah as occupant and owner of the property, since by that time Lakshmi narasamma and Anthaiah (Junior) died. ( 10 ) NEXTLY he relied on Ex. B-17 pahanis relating to 1955-56 and 1957-58 to show that his name was entered in the pahanis pursuant to the orders of Tahsildar referred to above. The Tahsildar s order is very clear that the person whose name was shown in col. No. 13 was treated as occupant and owner, but in Col. No. 13 some other name was shown while Jaggaiah s name was shown in Col. No. 11 and in Col. 12 it is mentioned that he succeeded to the property through a Will. Firstly the Tahsildar never passed an order that Jaggaiah succeeded to the estate by virtue of will. Secondly even according to Jaggaiah after death of Laxmi narasamma the name of Junior Antaiah was entered and he filed petition for corrections of entries and if that is so the document filed before this court should contain the name of junior Antaiah and thereafter the correction of entries should have been made but that was not the case on hand. The name of jaggaiah was shown clearly and name of antaiah did no t find in Col. No. ll. It is not difficult to hold that the document was pressed into service though there is no order from the Tahsildar to recognise the title and possession of Jaggaiah in the above order. For the foregoing discussions it is not difficult to come to the conclusion that the properties held by Papaiah are joint family properties and he managed the properties for the benefit of the family members i. e. three sons and their children of late senior antaiah. ( 11 ) MR. For the foregoing discussions it is not difficult to come to the conclusion that the properties held by Papaiah are joint family properties and he managed the properties for the benefit of the family members i. e. three sons and their children of late senior antaiah. ( 11 ) MR. Vinay Kumar strongly contended that after the entries in the revenue records were corrected in the year 1954-55 and the plaintiff in O. S. 24/86 kept quite for over 30 years and the plaintiff is estopped from contending that there was no partition between the children of Senior Anthaiah. The very fact that the plaintiff observed silence for thirty years proves beyond doubt that there was an earlier partition and as such it cannot be held that the properties are joint family properties. But at the same time mr. Vinay Kumar failed to draw our attention to any piece of evidence to show that there was severance in status between the members of co-parcenary at any time during the life time of late Senior Antaiah or papaiah or thereafter when once the properties are held to be joint family properties the question of limitation does not arise, since no coparcener can hold the property in exclusion to others and prefect title by adverse possession. Hence, this contention is rejected. ( 12 ) THE other question to be decided is whether the alleged Will Ex. B-11 dated 30th m1338 Fasli is true and valid. Firstly it is the case of the respondents that this Will was deposited in the office of Registrar and after the death of Papaiah the same was opened. This Will is said to have been executed on 30th M 1338 Fasli i. e. 1928 and late Papaiah died in 1340 Fasli i. e. 1930. The endorsement made by the Registrar on the reverse of it is very interesting. "registration Endorsement: after having been satisfied with the fact that the Executant of this Will is demised, the sealed cover containing this Will as per the request of Garlapati jaggaiah has been opened to-day the 6th day of Dai 1357 in my presence. SD/- NASEERUDDIN REGISTRAR city. Note: For the opening of the cover vide file No. 54 of 1357 Fasli. SD/- NASEERUDDIN REGISTRAR city. Registered as Document No. 2 page no. 9 book No. 3 of 1355 Fasli on this the 9th day of Dai 1357 Fasli. SD/- NASEERUDDIN REGISTRAR city. Note: For the opening of the cover vide file No. 54 of 1357 Fasli. SD/- NASEERUDDIN REGISTRAR city. Registered as Document No. 2 page no. 9 book No. 3 of 1355 Fasli on this the 9th day of Dai 1357 Fasli. SD/- NASEERUDDIN REGISTRAR city. "from the above it is seen that the document was registered in 1355 as document No. 2 of 1355 Fasli. On 9th day of 1357 Fasli it is not known as to how a document of 1355 can be registered in 1357 Fasli. No evidence whatsoever is forthcoming as to when the document was deposited in the Registrar s office, when late Papaiah died, why the document remained unopened for nearly 17 years. If it is opened in the year 1357 Fasli the document is expected to be registered in the same year. But it was registered in 1355 fasli. Mr. Vinay Kumar brought to our attention to the statement given by the clerk of the registration office in the proceedings initiated for correction before Tahsildar. He simply stated that the Will is of the year 1355 fasli and the Will was opened in the year 1357 Fasli. The witness is aged only 25 years at the time of giving the statement it cannot be said that he is in service at the time when the Will was deposited nor when it was opened it is only on the basis of some information he is speaking and this evidence is of not much use to the case on hand. ( 13 ) IT is interesting to note that mr. Jaggaiah while giving evidence in o. S. 36/91 stated that one Jaini Jammaiah, ganga Vasudave, Ramalingam who are no other than the relations of him were the witnesses to the Will Ex. B-1 and he was also present at the time of drafting the Will. It is useful to extract the evidence which is as follows:". . . . . . . . . JAINI Jammaiah, Ganga vasudave, Ramalingam are the witnesses to Ex. B-11 do not remember other witnesses names shown in ex. B-1 I was present at the time of drafting Ex. B-1. The witnesses are son- in-law s of executant of Ex. B-1 ramlingam is my sister s husband. The other two witnesses also related to me. "it is also interesting to note that Ex. B-11 do not remember other witnesses names shown in ex. B-1 I was present at the time of drafting Ex. B-1. The witnesses are son- in-law s of executant of Ex. B-1 ramlingam is my sister s husband. The other two witnesses also related to me. "it is also interesting to note that Ex. B-1 was drafted in his house by bringing a counsel and a Registrar. If the contents of the document are known to him as well as other witnesses we do not see any reason why the document was kept in a sealed cover to be opened only after the death of Papaiah. If the document is real and a genuine one nothing prevented late Papaiah to register the will then and there itself and hand it over to Jaggaiah himself. Further the witnesses to the will are no other than late jaggaiah and his relatives. From the mortgage deed Ex. A-5 it is seen that in 1910 itself there is a Registrar office at Bhongir but late Papaiah has gone to Hyderabad city to deposit the sealed cover containing the will. Further when Sub-Registrar, Bhongir is present at the time of the execution of the will it is not known as to why he has taken the will to Hyderabad city for depositing the same. It is also interesting to note that the original will was not produced before the court, but only certified copy and its translation was filed when original copy itself was available instead of taking steps to summon the document, he has chosen to file a certified copy which is considered to be a secondary evidence and the same is not admissible under Section 65 of Evidence act. ( 14 ) HE also stated that he is in exclusive possession and enjoyment of the property after the execution of the will. On the other hand in the present case he stated that after the death of Papaiah all the properties were transferred to Laxmi Narsamma, his wife and till the death of Laxmi Narsamma was in possession of the properties. He also admitted that after the death of Laxmi narsamma the lands were mutated in the name of Anthaiah (Junior) since she has no male issues. Then only he filed objection petition. He also admitted that after the death of Laxmi narsamma the lands were mutated in the name of Anthaiah (Junior) since she has no male issues. Then only he filed objection petition. From this it is evident that the witness is speaking falsehood, as he was not in possession of the properties from the date of execution of the will or even after the death of Papaiah. It is only after the death of junior Antaiah he got the revenue records manipulated taking advantage of the situation that the plaintiff was aged about 5 years as seen from the petition filed by him represented by his mother for setting the ex parte order and to permit him to come as LR of late Antaiah. Since the plaintiff was prosecuting studies he could not perhaps effectively conduct the case to protect his interest. Further he must be having support to fight the unscrupulous paternal uncle and it may not be possible during his minority. It is further interesting to note that under ex. B-11 late Papaiah bequeathed half share in favour of Jaggaiah and the remaining half in his wife Laxmi Narsamma. But nowhere he stated that Laxmi Narsamma got a share in the property under will and he claimed exclusively for himself. It is also interesting to note that in the objection petition filed before the Tahsildar no where he stated that either himself or Laxmi Narasamma were given properties under the will. What he stated in the objection petition is that papaiah and himself constitute a joint family. It is useful to extract the relevant portion, which is as follows:"4. That the family of Garlapati papaiah the husband of the demised lady and of the Objection petitioner is a joint family. And this objection petitioner is the nephew of Papaiah. This fact is supported by the registered document dated 20th Meher 1338 Fasli (which is preserved in the Office of the registrar, City and copy of thereof would be submitted in due course ). Upon which this last 23 years i. e. from the date of demise of Papaiah (1340 fasli) the action being taken on and even Garlapati Antaiah knows the same and it has the defect of resjudicate. " ( 15 ) FURTHER survey operations were conducted in the erstwhile Nizam State in the year 1928 and settlement records were prepared. Upon which this last 23 years i. e. from the date of demise of Papaiah (1340 fasli) the action being taken on and even Garlapati Antaiah knows the same and it has the defect of resjudicate. " ( 15 ) FURTHER survey operations were conducted in the erstwhile Nizam State in the year 1928 and settlement records were prepared. If the will is executed around 1930, by that time all the lands were surveyed and they are identified by their survey numbers. It is needless to observe that the houses in municipalities are concerned they will contain municipal numbers. But neither the municipal numbers were given nor the survey, numbers of the lands were mentioned in the will. It is a bald statement that half share will go to Jaggaiah because his father has advanced Rs. 5,000. 00 to Papaiah for business purpose. ( 16 ) IF late Narsaiah has given Rs. 5,000. 00 which was invested in his business naturally he would have conferred the benefit on both the sons of late Narsaiah but not on Jaggaiah alone. ( 17 ) VIEWED from any angle the Will cannot be said to be true and a bonafide one. In the light of discussion, we hold that ex. B-11 in O. S. 24/86 and B-l O. S. 36/91 is not true and bonafide. ( 18 ) COMING to the appeal filed by g. Lakshmaiah it is not in dispute that mr. Jaggaiah himself filed a declaration as kartha of the Joint family before the land ceiling authorities claiming that the property is a joint family property owned by himself, his brother Laxmaiah and his son. The land ceiling authorities accepted the declaration and issued orders as stated supra. After the sub-Court held that himself and Laxmaiah were not owning the properties jointly in o. S. No. 24 of 1986 Jaggaiah got inspiration from the findings recorded by the Sub-court and started denying the right over the properties in favour of Laxmaiah by contending that the declaration filed by him as kartha of the joint family under A. P. Agricultural Land Ceilings Act was at the instance of his brother Laxmaiah as he is an innocent person. Hence, the order passed by the land reforms authorities is not binding upon him. Nextly Mr. Hence, the order passed by the land reforms authorities is not binding upon him. Nextly Mr. Jaggaiah in his Writ statement in O. S. No. 36 of 1991 contended that the ceiling proceedings are still pending. It is his case that all the properties are in his possession to the exclusion of other members of the family. ( 19 ) NEXTLY he contended that he did not file the declaration as kartha of the joint family. The law on this aspect is well settled. In the absence of any evidence to the effect that there is severance in status between the members of a co-parcenary, it has to be presumed that the manager of the family will be representing the whole family in all his actions and deeds. ( 20 ) THE above principle is approved by the Hon ble Supreme Court in Amrit v. Sudesh in which it is held as follows:"it is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or as being sued as a manger. It is sufficient if the manager was in fact suing or being sued as representing the whole family. The suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property. It is not necessary, where the manger is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager. A karta can represent the family effectively in a proceeding though he is not named as such. "on the same analogy a Full Bench of Madras high Court in Vadlamannati Venkatanarayana rao v. Gottumukkula Venkata Somaraju the full Bench held that "the properties of the joint family in defendant s hands could be proceeded against in execution. " Though he was not described as kartha of the family. ( 21 ) WITH regard to the binding nature of the proceedings before the Land Ceiling authorities a Division Bench of this court in ch. " Though he was not described as kartha of the family. ( 21 ) WITH regard to the binding nature of the proceedings before the Land Ceiling authorities a Division Bench of this court in ch. Nirmala v. CH. Indira Devi held as follows:"12. The interpretation placed on ex. A-69 by the Land Reforms tribunals was affirmed by this court in c. R. P. Nos. 7479 and 7480 of 1979. Although there was no specific reference to Ex. A-69 in the order passed by this court in the civil revision petitions, the fact that the appellate order of the Tribunal was affirmed by this court, conclusively establishes that the interpretation placed upon Ex. A-69 by the appellate Tribunal was accepted by this court. An order of affirmance in revision by this court, it is settled law, need not contain elaborate reasons. The order of this court in the aforesaid civil revision petitions affirming the view of the Land Reforms Tribunals and ex. A-69 is the document evidencing partition between Bhaskar Rao and his minor son, Rajeev, constitutes a judicial precedent in all subsequent proceedings even between persons who are not parties to the original proceedings. 1 Madho Das v. Mukand ram AIR 1955 SC 481 AT 485- Para 24. "the orders of this court in aforesaid case in madho Das v. Mukand Ram which held that where the Privy Council has construed a certain document namely a will, though the decision is not binding on a person, not a party to the litigation, yet, the decision operates as judicial precedent, was followed by a single Judge of this court in Potluri sarasivathi v. Vallabhaneni Veerabhadra Rao. ( 22 ) FOR the same principle the judgment of the Supreme Court in R. N. Gosain v. Yashpal Dhir:" (10) Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. " according to Halsbury laws of England, 4th Edn. , vol. " according to Halsbury laws of England, 4th Edn. , vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside. " (para 1508 ). (11) In Thacker Hariram Motiram v. Balkrishan Chatrabhu Thacker this Court was dealing with a similar situation. The High Court, while deciding the second appeal in an eviction matter gave the appellant (tenant) one year s time subject to his giving an undertaking within a period of three weeks stating that vacant possession would be handed over within the aforesaid time. The appellant gave an undertaking in accordance with the said terms wherein he undertook that he would vacate and give vacant possession of the suit premises by 31-12-1985, i. e. , to say after one year if"by that time no stay order from the Supreme Court is received as I intend to file an appeal in the Supreme Court. "it was held that in view of the said undertaking the petitioner could not invoke the jurisdiction of this petitioner could not invoke the jurisdiction of this Court under Article 136 of the Constitution and he should abide by the terms of the undertaking, and it was observed: (pp 655-56):"this undertaking filed by the appellant in our opinion is in clear variation with the oral undertaking given to the learned Judge which induced him to give one year s time. We do not wish to encourage this kind of practice for obtaining time from the court on one plea of filling the undertaking and taking the different stand, in applications under Article 136 of the Constitution. " (2) Similarly in Vidhi Shanker v. Heera lap and Ramchandra Jai Ram Randive v. Chandanmal Rupchand this Court declined to exercise its discretion under Article 136 of the Constitution in cases where the petitioner had given an undertaking in the High Court and had obtained time to vacate the premises on the basis of such undertaking. " from the conduct of Mr. Jaggaiah, it is not difficult to hold that he was changing his version from time to time to suit his evil intentions of denying a rightful share to the other members of the family. ( 23 ) FOLLOWING the above judgment, we hold that he cannot approbate or reprobate to suit his convenience. " from the conduct of Mr. Jaggaiah, it is not difficult to hold that he was changing his version from time to time to suit his evil intentions of denying a rightful share to the other members of the family. ( 23 ) FOLLOWING the above judgment, we hold that he cannot approbate or reprobate to suit his convenience. The learned counsel for the appellant in A. S. 1186/94 brought to our notice that in C. M. P. No. 13937/93 a division Bench of this court having heard both the parties, directed the respondents not to alienate the properties. However, the respondent is given liberty to raise loans by mortgaging the suit land for the purpose of agriculture. Mr. Lakshmaiah stated that several pamplets were printed and published in the town informing the public, the orders passed by this court so that the respondent may not alienate properties, even then the respondent having collected huge amounts from third parties clandestinely inducted them into the possession of the properties in violation of the injunction orders. We need not go into this question, since the final decree has to be passed basing on the judgment of this court. It is open to him to raise all these issues either in the final decree proceedings or in the E. P. ( 24 ) IN the result, the impugned judgment and decree is set aside including the findings recorded on issue No. 7 in O. S. 24/86 and both the suits are decreed and since the plaintiff in O. S. No. 24 of 1986 represented the branch of late Junior Antaiah, we hold that he gets half share in the property and both Jaggaiah and Lakshmayya will get one further share each in the properties. A preliminary decree shall be passed in o. S. 24/86 in the above terms since a preliminary decree is passed in O. S. 24/86 there is no need to pass a separate preliminary decree in O. S. No. 36 of 1991 filed by Lakshamaiah as the same shall apply in this case also. Accordingly both the appeals are allowed. Parties shall bear their own costs through out.