( 1 ) DEFENDANTS 2 and 4 in O. S. No. 1195 of 1989 on the file of the iv Additional Judge, City Civil Court, hyderabad, are the appellants. Respondents 1 and 2 are the plaintiffs in the suit. The plaintiffs filed the suit for declaration that the plaintiffs 1 and 2 are the legal heirs of deceased Dr. Tajammul Hussain, as per the Succession Certificate granted in o. P. No. 15 of 1985 by the Court of the viii Assistant Judge, City Civil Court, hyderabad, on 27-2-1989 and are alone entitled to the shares of 1/8th and 7/8th respectively as per Shia Law of inheritance to all the amounts in the Banks. Margadarshi chit Fund Private Limited and shares as shown in schedule 1 and 2 of the plaint with a right to operate and withdraw the same. ( 2 ) HERE itself it may be mentioned that in Para 13 (b) of the plaint, the following relief was prayed for :"that as per the undertaking the 2nd defendant is bound to pay the 1st and 2nd plaintiffs Rs. 86,350/- withdrawn by him surreptitiously praying for Decree jointly against the 9th defendant also for making payment during the pendency of the O. P. 15 of 1985 despite being a party to the proceedings and also after receiving the letter from the plaintiff s advocate that theory of advancement is not applicable to disburse the amounts in favour of a nominee. "and the same had been deleted on 13-7-1989. The defendants in the suit filed written statement in detail and contested the matter. The learned Judge recorded the evidence of PW. 1 and DW. 1 and marked exs. A-1 to A-12 and ultimately came to the conclusion that plaintiffs 1 and 2 are alone entitled to their respective shares of the schedule amounts as legal representatives of late Dr. Tajammul Hussain and accordingly the suit was decreed declaring plaintiffs 1 and 2 are the legal representatives dr. Tajammul Hussain and plaintiffs, are entitled for Rs. 25,000/- towards Meher amount and Rs. 15,597/- due shown in clearance certificate out of the total amount left by Dr. Tajammul Hussain, in plaint schedule 1 and 2 and in the remaining amount, the first plaintiff is entitled to 1/8th and second plaintiff is entitled to 7/8th share and the plaintiffs are entitled to costs from defendant Nos. 1 to 8. 15,597/- due shown in clearance certificate out of the total amount left by Dr. Tajammul Hussain, in plaint schedule 1 and 2 and in the remaining amount, the first plaintiff is entitled to 1/8th and second plaintiff is entitled to 7/8th share and the plaintiffs are entitled to costs from defendant Nos. 1 to 8. Aggrieved by the same, defendants 2 and 4 had preferred the appeal C. C. C. A. No. 76 of 1996. The first and second respondents in the appeal-plaintiffs in the suit filed cross-objections under Order 41 Rule 22 of the Code of Civil Procedure praying for the amount of Rs. 86,350/- which had been withdrawn with interest at 24% per annum from the date of undertaking i. e. , from 28-10-1985 to 29-3-1996, the date of judgment. ( 3 ) CONTENTIONS of Sri Basith Ali yawar : sri Basith Ali Yawar, the learned Counsel representing the appellants had taken this Court through the findings which had been recorded in O. P. No. 15 of 1985 by the VIII Assistant Judge, City Civil Court, hyderabad, and would maintain that these proceedings in relation to Succession certificate being summary proceedings, the civil Court while deciding the matter in an original suit may have to decide the questions in controversy afresh, inasmuch as the said findings cannot be said to be res judicata or in any way binding on the parties. The learned Counsel also explained the relationship between the parties and would maintain that in the light of the facts and circumstances of the case, inasmuch as the daughter is entitled to only a specified share as specified in the Table under Section 90 in Mulla s principles of Mahomedan Law, for the rest of the amounts, no doubt excluding the share of the wife, to which the wife may be entitled to, the other shares representing the sisters and brother of Dr. Tajammul hussain alone would be entitled to and in this view of the matter the learned Judge erred in granting the relief as prayed for. The learned Counsel, in all fairness, had accepted that amount had been withdrawn and an undertaking had been filed. Tajammul hussain alone would be entitled to and in this view of the matter the learned Judge erred in granting the relief as prayed for. The learned Counsel, in all fairness, had accepted that amount had been withdrawn and an undertaking had been filed. But, however, the learned Counsel would maintain that when this relief was specifically deleted in the original Court, the question of invoking the right to maintain the cross- objections or cross-appeal under Order 41 rule 22 of the Civil Procedure Code relating to that relief before the appellate court, will not be available to such parties. The learned Counsel also pointed out to that portion of the plaint where specifically the relief had been deleted. ( 4 ) CONTENTIONS of Koka Raghava rao : sri Koka Raghava Rao, the learned counsel representing respondents 1 and 2-plaintiffs in the suit would submit that relating to the respective shares of 1/8th to the first plaintiff and 7/8th share to the second plaintiff as per Shia Law of inheritance, clear findings had been recorded by the learned Judge and in the light of the same and also in the light of the findings recorded by the learned Judge independently on the strength of the evidence available on record, the said findings need not be disturbed. The learned Counsel also maintained that as per the undertaking, the second defendant is bound to pay the plaintiffs Rs. 86,350/- as per the affidavit filed by the second defendant in O. P. No. 15 of 1985 aforesaid marked as Ex. A-4 and inasmuch as that amount was withdrawn surreptitiously, the plaintiffs need not be driven to yet another litigation and in view of the fact that cross-appeal had been preferred, in the facts and circumstances of the case, the said relief also may be granted by this Court. The learned Counsel in detail had explained how when class-I heirs are available, the other heirs would be excluded from getting any share whatsoever. ( 5 ) HEARD both the Counsel. Perused the respective pleadings of the parties and the evidence available on record and the findings recorded by the learned Judge. ( 6 ) IN the light of the rival contentions advanced by the parties, the following points arise for consideration in this appeal :1. ( 5 ) HEARD both the Counsel. Perused the respective pleadings of the parties and the evidence available on record and the findings recorded by the learned Judge. ( 6 ) IN the light of the rival contentions advanced by the parties, the following points arise for consideration in this appeal :1. Whether the findings recorded by the learned IV Additional Judge, City civil Court, Hyderabad, relating to the entitlement of the amounts by the first and second respondents- plaintiffs 1 and 2 be confirmed or to be disturbed in any way. 2. Whether respondent Nos. l and 2-plainiffs are entitled to the claim of rs. 86,350/- with interest thereon as claimed in the memorandum of cross-appeal. 3. If so, to what relief, the parties would be entitled to. ( 7 ) POINT No. 1 : the parties hereinafter would be referred to as plaintiffs and defendants for the purpose of convenience. The plaintiffs filed the suit for declaration that they are the legal heirs of Dr. Tajammul Hussain as per the Succession Certificate granted in o. P. No. 15 of 1985 on the file of the viii Assistant Judge, City Civil Court, hyderabad, dated 27-2-1989, and are entitled to 1/8th and 7/8th shares respectively as per Shia Law of inheritance to all the amounts in the Banks, Margadarsi Chit fund Private Limited and shares as shown in schedule 1 and 2 of the plaint schedule with a right to operate and withdraw the same. As already referred to supra, the other relief relating to the realization of rs. 86,350/- as per the undertaking and also the affidavit by the second defendant had been deleted. The suit was partly decreed and aggrieved by the respective portions, the appeal and the cross-appeal were filed. The plaintiffs are aggrieved of negativing the relief relating to Rs. 86,350/- withdrawn by the second defendant from the account of later Dr. Tajammul Hussain from the andhra Bank. It was pleaded in the plaint that the first plaintiff is the wife and the second plaintiff is the daughter of dr. Tajammul Hussain. It was further pleaded that the first defendant is the sister of Tajamul Hussain and D2 to D4 are the children of his pre-deceased sister. Defendant Nos. 5 to 8 are the legal representatives of Hyder Ali brother of dr. Tajamul Hussain who was expired on april, 1984 and defendant Nos. Tajammul Hussain. It was further pleaded that the first defendant is the sister of Tajamul Hussain and D2 to D4 are the children of his pre-deceased sister. Defendant Nos. 5 to 8 are the legal representatives of Hyder Ali brother of dr. Tajamul Hussain who was expired on april, 1984 and defendant Nos. 9 and 10 are the bankers, they were added as parties since late Tajamul Hussain had his deposits in the savings bank. Defendant No. 11 is the company in which he had the shares. It is contended that Dr. Late Tajamul hussain died on 1st February, 1984 leaving behind the plaintiffs as LR s to succeed his estate. He was in medical service and retired in the year 1978. Thereafter he was running a Dental Clinic in his house. Dr. Tajamul Hussain did not inherit any property from his late parents. All the properties in the shape of shares in various companies arid deposits in bank including residential house bearing No. 3-6-319, hyderguda are all his self acquired properties. During his life time out of his own earnings and his provident fund, gratuity extra made several deposits in the bank as shown in Schedule-I. He has also purchased several shares in various companies. While depositing in Andhra bank Hyderguda in Savings account no. 728, folio No. 4, the names of defendants 2 and 3 were also mentioned along with his name likewise in savings account No. 2034, folio No. 11 in Andhra Bank, Hyderguda, the name of defendant No. 1 is also shown along with his name and in other account no. 244, folio No. 2 of Andhra Bank, hyderguda along with his name the name of the third brother who is father of L. R s d5 to D8 is also mentioned. Likewise in fixed deposits in Andhra Pradesh account no. 211515-1/16/82 and in the Statement bank of India account No. T-610313 and 610228 the name of the third defendant mentioned along with his name in Margadarsi finance also name of third defendant is mentioned. Though the deposits in the bank and several shares in the companies were taken by the later Tajamul Hussain jointly in the name of Dl to D8. It was neither intended by the deceased to create a gift in favour of defendants nor was it acted upon at any point of time. Though the deposits in the bank and several shares in the companies were taken by the later Tajamul Hussain jointly in the name of Dl to D8. It was neither intended by the deceased to create a gift in favour of defendants nor was it acted upon at any point of time. Even their names were not shown in the income tax returns. And he did not gift any of the amounts in favour of the said defendants. He is only the absolute owners of all the deposits as mentioned in schedule-I and all the shares as shown in schedule-II and after his death the plaintiffs are only entitled for the estate of dr. Late Tajamul Hussain as his legal heirs. Dr. Tajamul Hussain who was Bhora muslim governed by Shia Law and first plaintiff was married as per Muslim Personal law and second plaintiff was their daughter as per the Shia Law of inheritance. The first plaintiff is entitled for l/8th share and meher amount of Rs. 25,000/- in the estate of late Dr. Tajamul Hussain. Since she had paid the estate duty out of her own funds to get estate duty clearance certificate she is entitled for Rs. 15,597/- to that effect. As per the shia law, the first plaintiff is entitled for l/8th share from the above referred amounts and second plaintiff is entitled for 7/8th share. It is also contended that they have filed O. P. 15/85 for obtaining succession certificate on the file of III Assistant Judge. In the said O. P. the defendants have taken plea that later dr. Tajamul Hussain is not shia buit sunee and they are also entitled for the shares. The defendant No. 2 herein secretly withdrawn a sum of Rs. 86,350/- though a undertaking is given in the said O. P. The said O. P. was allowed on 25-2-1989 holding that the plaintiffs are governed by Shia Law to inheritance and they are only the L. R s of late Dr. Tajamul Hussain and entitled for his estate and it is also further observed since the amount deposited in the bank are in dispute, a separate suit could be filed with regard to the possession of said accounts. Defendants 1 and 2 filed written statement, which was adopted by the third and fourth defendants. It was pleaded that during the life-time of Dr. Defendants 1 and 2 filed written statement, which was adopted by the third and fourth defendants. It was pleaded that during the life-time of Dr. Tajamul Hussain, some back accounts were opened which were joint accounts along with the third and fourth defendants and that they had also contributed the amount after the death of dr. Tajammul Hussain and they are entitled to withdraw the amounts from the bank since they are joint account holders. It was further pleaded that late Dr. Tajamul hussain had gifted away portion of the property bearing No. 3-6-319, Hyderguda, hyderabad, in favour of the first defendant and by virtue of the said gift, the first defendant became the owner. It is also pleaded that the plaintiffs have no locus standi or to dispute the arrangements made by Late Dr. Tajammul Hussain during his lifetime and so far as the personal property of Dr. Tajammul Hussain is concerned, the plaintiffs made claim of their shares as per Shia Law of inheritance. Defendant No. 11 also filed written statement pleading that these defendants are not concerned with the internal disputes of the parties and they are ready and willing to proceed with the directions of the court. ( 8 ) ON the strength of the pleadings of both the parties before the trial Court, the following issues were settled :1. Whether the plaintiffs 1 and 2 are the L. R s of deceased Dr. Tajamul hussain as claimed. 2. Whether the plaintiffs are entitled for the properties as per their shares shown in schedule-I and. 3. Whether the plaintiffs are entitled for the injunction against defendants 8 to 11 and Dl to D8 from operating the bank account as claimed. 4. To what relief. ( 9 ) ON behalf of the plaintiffs, PW. 1 was examined and Exs. A-1 to A-12 who marked and on behalf of the defendants, dw. l alone was examined. Ex. A-1 is the certified copy of the affidavit in O. P. No. 15 of 85. Ex. A-2 is the certified copy of the Assessment tax receipt of late dr. Tajammul Hussain. Ex. A-3 is the certified copy of the Assessment Tax receipt. Ex. A-4 is the original affidavit in o. P. No. 15 of 1985. Exs. A-3a, b and c are the copies of Death Certificate, Estate duty receipt and acknowledgment of income Tax receipt respectively. Ex. Tajammul Hussain. Ex. A-3 is the certified copy of the Assessment Tax receipt. Ex. A-4 is the original affidavit in o. P. No. 15 of 1985. Exs. A-3a, b and c are the copies of Death Certificate, Estate duty receipt and acknowledgment of income Tax receipt respectively. Ex. A-5 is the original petition in O. P. No. 15 of 85. Ex. A-6 is the copy of the affidavit in la. No. 1488 of 1993. Ex. A-7 is the copy of the counter-affidavit in I. A. No. 1488 of 1993. Ex. A-8 is the copy of the order in i. A. No. 1488 of 1993. Ex. A-9 is the copy of the affidavit in I. A. No. 1489 of 1993. Ex. A-10 is the copy of counter-affidavit. Ex. A-11 is the copy of order in I. A. No. 1489 of 1993. Ex. A-12 is the copy of legal notice dated 20-9-1985. PW. l deposed in detail about all the facts. The relationship between the parties is not in serious controversy. DW. l no doubt deposed that they also contributed the amounts and they are also entitled to the respective amounts. The question in controversy is whether the plaintiffs alone are entitled to the amounts left by Dr. Tajammul Hussain or whether the defendants also would be entitled to their respective shares being the near relatives of deceased. Submissions at length were made in this regard. ( 10 ) IN Mulla s Principles of mohammedan Law 19th edition, Chapter 8 deals with Shia Law of inheritance. Section 87 deals with the division of heirs specified. The Shias divide heirs into two groups, namely, (1) heirs by consanguinity, that is, blood relations and (2) heirs by marriage, that is, husband and wife. Section 88 deals with three classes of heirs by consanguinity, reads as hereunder :"three classes of heirs by consanguinity :- (1) Heirs by consanguinity are divided into three classes, and each class is sub-divided into two sections. These classes are respectively composed as follows : i. (i) Parents; (ii) children and other lineal descendants h. i. s. II. (i) Grandparents h. h. s. (true a well as false); (ii) brother and sister and their decendant h. l. s iii. These classes are respectively composed as follows : i. (i) Parents; (ii) children and other lineal descendants h. i. s. II. (i) Grandparents h. h. s. (true a well as false); (ii) brother and sister and their decendant h. l. s iii. (i) Paternal, and (ii) maternal, uncles and aunts, of the deceased, and of hi parents and grandparents h. h. s. , and their descendants h. l. s. (2) Of these three classes of heir, the first exclude the second from inheritance; and the second excludes the third. But the heir of the two sections of each class succeed together, the nearer degree in each section excluding the more remote in that section. ( 11 ) SECTION 89 deals with the Husband and Wife and the same reads as hereunder: husband and wife : the husband or wife is never excluded from succession, but inherits together with the nearest heirs by consanguinity, the husband taking or 1/2, and the wife taking 1/8 or 1/4 under the conditions mentioned in the table of Sharers on page 84. ( 12 ) SECTION 90 deals with the Table of shares and the same reads as hereunder : table of Shares- Shia Law :- (1) For the purpose of determining the shares of heirs, the Shias divide heirs into two classes, namely, Sharers and Residuaries. There is no separate class of heirs corresponding to the"distant Kindred" of Sunni law. (2) The sharers are nine in number. The table on page 84 gives a list of Sharers together with the shares assigned to them in Shia Law. (3) The descendants h. l. s. of sharers are also sharers. ( 13 ) SECTION 91 deals with the residuaries. In the Table of Sharers - Shia law under Section 90, column No. 5 was specifically pointed out, which reads as under: residuaries :- (1) All heirs other than sharers are Residuaries. (2) The descendants h. l. s of the residuaries are also Residuaries. Table of Sharers-Shia Law (Section 90) Baillie, II, 27-276, 381 ). Shares normal of one share of two or More collectively conditions under which the share is inherited share as varied by special circumstances 5. Daughter 2/3 when no son (With the son she takes as a residuary.) ( 14 ) SECTION 110 dealing with the doctrine of "increase", specially says the sunni doctrine of increase is not recognized in the Shia Law. Daughter 2/3 when no son (With the son she takes as a residuary.) ( 14 ) SECTION 110 dealing with the doctrine of "increase", specially says the sunni doctrine of increase is not recognized in the Shia Law. According to the Shia law, if the sum total of the shares exceeds unity, the fraction in excess of the unity is deducted invariably from the share of- (a) the daughter or daughters; or (b) full or consanguine sister or sisters. ( 15 ) IN the light of the above legal position, it is clear that as per the Shia Law of inheritance, since wife would not be excluded, wife is a sharer and accordingly the daughter being class-I heir would exclude the other heirs and in that view of the matter, the findings recorded by the learned judge cannot be found fault. Certain findings in O. P. No. 15 of 1985 had been relied upon. The said O. P. was filed by the wife of Dr. Tajammul Hussain under Section 372 of the Indian Succession Act 1925 praying for grant of Succession Certificate. No doubt, certain positive findings had been recorded that the wife and the daughter alone would be entitled to the amounts by virtue of Shia Law of inheritance. ( 16 ) SECTION 381 of the Indian Succession act deals with the Effect of certificate, which reads thus: effect of Certificate :-Subject to the provisions of this Part, the Certificate of the district Judge shall, with respect of the debts and securities specified therein, by conclusives as against the persons owing such debts or liable on such securities, and shall, notwithstanding any contravention of Section 370, or other defect, afford full indemnity to all such persons as regard all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. " ( 17 ) SUB-SECTION (3) of Section 373 of the Indian Succession Act specifies that if the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. ( 18 ) IT is no doubt true that the positive findings which had been recorded in O. P. No. 15 of 1985 in the aforesaid summary proceedings would not come in the way of recording independent finding in the suit or appeal on the aspect of Shia law of inheritance or otherwise with which the parties are governed by. Hence, the findings recorded in O. P. No. 15 of 1985 cannot be said to be conclusive between the parties. But, however, in the light of the careful examination of the Shia Law of inheritance, this Court is satisfied that the plaintiffs alone are entitled to inherit the amount left by dr. Tajammul Hussain. Hence, the said findings need not be found fault and accordingly the findings recorded by the learned Judge in this regard are hereby confirmed. ( 19 ) POINT No. 2 :-Order 41 Rule 22 of the Code of Civil Procedure reads as hereunder :"upon hearing respondent may object to decree as if he had preferred a separate appeal :-Any respondent, thought he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him decree in the Court below in respect of any issue ought to have been in his favour, and may also take any cross- objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow. "respondents 1 and 2 in the appeal as cross- objectors are aggrieved of that portion by virtue of which, the relief relating to rs. 86,350/- with interest thereon had been negatived. This cannot be made a ground of attack in the appeal for the first time for the reason that the said relief was deleted even before the original Court, as can be seen from the record. A partly, who had given up the claim before the original Court, cannot make a grievance of it before the appellate Court and cannot raise the same ground as a ground of attack either by way of cross-objection or by way of cross-appeal. A partly, who had given up the claim before the original Court, cannot make a grievance of it before the appellate Court and cannot raise the same ground as a ground of attack either by way of cross-objection or by way of cross-appeal. In the considered opinion of this Court, this is not the object of Order 41 Rule 22 cpc and hence the same cannot be maintained before this Court as appellate court, having given up the relief even before the original Court. It is needless to say that in view of the same, the other merits and demerits of the grounds raised, and the arguments advanced in relation to the cross-objections-cross appeal need not be considered in elaboration and accordingly the same are bound to fail. ( 20 ) POINT No. 4 : in the light of the findings recorded above, it is needless to say that both the appeal and the cross-objections are devoid of merit and accordingly the same shall stand dismissed. In view of the close relationship between the parties, the parties to the litigation would bear their own costs.