Judgment : 1. These two second appeals are directed against the common judgment in A.S.Nos.80 of 1998 and 83 of 2001 on the file of III Additional District Judge, Ranga Reddy District dated 29-11-2003 and hence, they are heard and decided together. 2. The parties are referred to herein as they are arrayed before the trial Court. 3. The plaintiff filed the suit for partition of the plaint schedule properties items 1 to 8 and allotment of 1/7th share to him and to restrain the defendants and any others claiming through them from alienating or making any constructions in the plaint schedule properties. The plaintiff, who is the son of defendants 1 and 7 and brother of defendants 2 to 6, claimed that they constituted a joint Hindu family of which the 1st defendant was the Kartha. He claimed the suit schedule properties to have been purchased in the name of the 1st defendant with the earnings of the entire family including the joint exertions of the plaintiff and others. The entire family was enjoying the properties and when the 1st defendant became bed ridden due to paralysis, he started neglecting the plaintiff and showing more affection towards defendants 2 to 6. On learning that the 1st defendant was trying to transfer some properties to defendants 2 to 6 and sell other properties to third parties, the plaintiff made demands for partition, but in vain. Hence, the suit. 4. The 1st defendant died after filing of the suit and the 7th defendant, his wife, was brought on record as his legal representative. 5. The defendants 2 to 7 denied the allegations in the plaint, which are not specifically admitted and the plaintiff was stated to be living separately with his wife and children at Hydershakote village having nothing to do with the family affairs of defendants 1 to 7. The suit schedule properties are the self-acquired exclusive properties of the 1st defendant and enjoyed as such. When the 1st defendant was ill, the plaintiff never visited him and the 1st defendant died after this false suit for partition, on deterioration of his health. The suit schedule properties are the self-acquired exclusive properties of the 1st defendant and enjoyed as such. When the 1st defendant was ill, the plaintiff never visited him and the 1st defendant died after this false suit for partition, on deterioration of his health. The plaintiff was never in joint possession of any property and the 1st defendant, who acquired the properties in items-1 to 3 under registered sale deeds, executed the registered Wills dated 18-03-1989 and 5-10-1989 in favour of defendants 2 and 5 respectively concerning items 1 and 3 and the 1st defendant also sold away Ac.2.00 of land in item-2 to his son-in-law under a registered deed dated 5-6-1989, while the remaining Ac.1.13 guntas were given to the 1st defendant’s daughter Urmila (Rani) Bai, wife of Satyanarayana towards Pasupukumkuma. While the 1st defendant had nothing to do with items 4 to 7 of the plaint schedule, an open plot of 400 square yards in item-7 belonged to Indira Bai, the daughter of the 1st defendant. The 1st defendant was the owner of the house in item-8, but it was not measuring about 100 square yards as stated in the plaint schedule. The plaintiff separated more than 15 years earlier from the defendants and was living with his wife and children at House No.2-24, Hydershakote village, whereas the defendants were living at Kanukunta village. The plaintiff was, hence, contended to be not entitled to any share and to have not paid the court fee as per the market value of the properties being out of possession. The suit was also liable to be dismissed for mis-joinder of proper and necessary parties to the suit and hence, the defendants 2 to 7 desired that the suit be dismissed with costs. 6. On such pleadings, the following issues were framed for trial. (1) Whether the plaintiff is entitled for partition and separate possession of the suit properties as prayed for? (2) Whether the suit is to be dismissed for mis-joinder or (of) parties? (3) Whether the court fee paid is not correct? (4) To what relief the plaintiff is entitled to? 7. During trial, PWs.1 and 2 and DWs.1 to 4 were examined and Exs.A.1 to A.5 and B.1 to B.7 were marked. 8. The trial Court rendered its judgment dated 29-12-1997 noting that admittedly there was no ancestral nucleus for the family. (3) Whether the court fee paid is not correct? (4) To what relief the plaintiff is entitled to? 7. During trial, PWs.1 and 2 and DWs.1 to 4 were examined and Exs.A.1 to A.5 and B.1 to B.7 were marked. 8. The trial Court rendered its judgment dated 29-12-1997 noting that admittedly there was no ancestral nucleus for the family. PW.1, the plaintiff, admitted that after his marriage in 1976, the defendants 1 to 6 left for Lingampally within few months leaving him alone in the ancestral house at Hydershakote. PW.1 also admitted that his father gave him 11 cycles in 1976 for running a cycle taxy shop since his separate living and he did not contribute anything for the purchase of the properties after 1976. The trial Court found that when the purchase of part of item-1 was made under Ex.B.1 in 1968, PW.1 was 12 years old and when the remaining properties were purchased, the plaintiff was already living separately. The sale of Ac.2.00 of land out of item-2 by the 1st defendant under the original of Ex.B.3 was also admitted and hence, the trial Court concluded that the properties are the self-acquired properties of the 1st defendant. Dealing with Exs.B.4 to B.7, the copies of the two Wills, said to have been executed by the 1st defendant, the trial Court took an adverse note of the non-production of the originals and notwithstanding the examination of DWs.3 and 4 in support of the Wills, the trial Court found the second Will to have been executed on 5-10-1989 after the suit before the death of the 1st defendant on 29-10-1989. The 1st defendant was noted to be suffering from paralysis since 4 years prior to the first Will and defendants 2 to 6 were noted to be in a dominating position over the 1st defendant. The youngest son and the wife were excluded from properties and what movables were given to the wife was also not elaborated. The Wills were, therefore, considered to be shrouded by suspicious circumstances. While the plaintiff was otherwise considered entitled to a share as a son on the death of the 1st defendant, the trial Court observed that admittedly the 1st defendant has two daughters and they are necessary parties to the suit being entitled to claim shares in the self-acquired properties of the 1st defendant along with their brothers and mother. While the plaintiff was otherwise considered entitled to a share as a son on the death of the 1st defendant, the trial Court observed that admittedly the 1st defendant has two daughters and they are necessary parties to the suit being entitled to claim shares in the self-acquired properties of the 1st defendant along with their brothers and mother. Referring to the precedents cited before it, the trial Court concluded that all the sharers are necessary parties and as the daughters of the 1st defendant were not impleaded after his death, the suit was bad for non-joinder of necessary parties. The trial Court also noted that the ancestral house in which the plaintiff is living with his wife and children also should have been included in the suit schedule and the plaintiff also ought to pay the court fee on the market value of the properties as he was not in joint possession of the properties by the time of the suit. 9. However, after the death of the 1st defendant, the plaintiff need not have paid court fee on the market value and concluded that the suit was dismissed without costs in the light of the suit being held to be bad for non-joinder of necessary parties. 10. In A.S.No.80 of 1998 and A.S.No.83 of 2001 against the said judgment, on the death of the 7th defendant during the pendency of the appeals, the two daughters of the defendants 1 and 7 were impleaded as respondents 8 and 9. 11. The First Appellate Court in the common judgment considered whether the suit schedule properties are the joint family properties or the self-acquired properties of the 1st defendant and whether the findings in the judgment of the lower Court are liable to be set aside. Exs.B.8 and B.9, the original Wills said to have been executed by the 1st defendant were received in evidence in the appeals. The First Appellate Court noted that PW.1, the plaintiff, admitted sale of Ac.2.00 of land in item-2 by the 1st defendant to Satyanarayana. The First Appellate Court also noted that PW.1 admitted that his father gave 11 cycles to him with which he did cycle taxi business for three months. The First Appellate Court noted that PW.1, the plaintiff, admitted sale of Ac.2.00 of land in item-2 by the 1st defendant to Satyanarayana. The First Appellate Court also noted that PW.1 admitted that his father gave 11 cycles to him with which he did cycle taxi business for three months. While observing that PW.1 did not succeed in proving his contribution for the purchase of the suit properties, the plaintiff was considered entitled to a share in the self-acquired properties of his father along with other children of the 1st defendant. The First Appellate Court noted DW.3 to be a friend of 4th defendant and the interpolations in Ex.B.5 were taken adverse note of. DW.3 was noted to have not spoken about the executant of the Will being in a sound and disposing state of mind and though the original Wills were admitted into evidence in appeals as Exs.B.8 and B.9, the First Appellate Court noted that pages 1 to 3 of Ex.B.8 were peculiarly torn and Ex.B.8 was considered to be appearing as being fabricated on blank papers with the signatures of the 1st defendant. DW.4 was noted to be supplying milk to the 1st defendant and none of the neighbours or villagers being chosen as witnesses was also noted. No provision being made to the wife or the younger son was also considered unnatural and the dominating position of defendants 2 to 6 was also considered probable. Hence, the First Appellate Court also considered both the Wills to be shrouded by suspicious circumstances and not acceptable. The First Appellate Court opined that as the daughters of the 1st defendant were brought on record during the pendency of the appeal on the death of the 7th defendant, the ground of dismissal of the suit due to nonjoinder of the daughters of the 1st defendant was of no consequence. The First Appellate Court excluded Ac.2.00 guntas in item-2 sold to the son-in-law by the 1st defendant under a registered sale deed and considered the other plaint schedule properties to be available for partition with all the sons and daughters being equally entitled to a share. The First Appellate Court considered A.S.No.83 of 2001 to have not been filed within limitation to be treated as cross objections and to be liable for dismissal even on merits in view of the findings in A.S.No.80 of 1998. The First Appellate Court considered A.S.No.83 of 2001 to have not been filed within limitation to be treated as cross objections and to be liable for dismissal even on merits in view of the findings in A.S.No.80 of 1998. Consequently, the judgment and decree of the trial Court were set aside and a preliminary decree was passed for partition of the suit properties into 8 equal shares and allotment of one share to the plaintiff, while relegating the determination of mesne profits to a separate application in the final decree proceedings. Costs were also awarded to the plaintiff in the appeal. 12. Both the second appeals are filed by all the respondents to A.S.No.80 of 1998 contending that the 1st defendant having earned all the suit properties got every right to alienate the same and the plaintiff did not take any plea concerning the mental condition of the 1st defendant while executing Exs.B.8 and B.9. The plaintiff did not produce any evidence to show any suspicious circumstance surrounding Exs.B.8 and B.9 and had in fact admitted their execution. The First Appellate Court should have noted that there is no Sub-Registrar’s office at Ramachandrapuram and the District Registrar’s office was located only at Mehdipatnam at the relevant time. When the wife and younger son have not objected to being deprived, the Courts below could not have disbelieved the Wills on that ground and the evidence of DWs.3 and 4 about the execution of the Wills ought to have been accepted. The inherent defect in the suit due to non-joinder of parties at the time of its institution cannot be cured by impleading the necessary parties during the pendency of the appeal and the dismissal of A.S.No.83 of 2001 as barred by limitation is against the legal position under Order-XLI Rule 22 of the Code of Civil Procedure. The copy of the grounds of appeal was given to the respondents in A.S.No.80 of 1998 only in the first week of December 1998 and the cross appeal was filed on 17-12-1998 without any delay. The appellants, therefore, contended that substantial questions of law arise about the impact of impleading the necessary parties in the appeal and the bar of limitation for A.S.No.83 of 2001. 13. Both the second appeals were admitted by a learned Judge of this Court on 10-2-2005 on the following substantial question of law. The appellants, therefore, contended that substantial questions of law arise about the impact of impleading the necessary parties in the appeal and the bar of limitation for A.S.No.83 of 2001. 13. Both the second appeals were admitted by a learned Judge of this Court on 10-2-2005 on the following substantial question of law. “Whether the legal representatives of the 7th defendant can be impleaded at appellate stage, who died pending the suit and whether it will cure the defect or not and whether the order impleading them as legal representatives without there being any finding as to the delay condonation at appellate stage is proper or not”. 14. Sri N. Ashok Kumar, learned counsel for the appellants in both the second appeals and Sri K. Pandu Ranga Rao, learned counsel for the respondent in both the second appeals are heard. The point for consideration is the substantial question of law formulated at the time of admission of the second appeals. 15. The conclusions of the trial and First Appellate Courts regarding the properties in the name of the 1st defendant being his self-acquired properties are not challenged by the respondent herein. Both the trial and First Appellate Courts concluded the execution of Exs.B.8 and B.9-Wills by the 1st defendant to be shrouded by suspicious circumstances and to be not acceptable. The concurrent findings of fact on this aspect were not made the subject of the substantial questions of law suggested by the appellants in the grounds of appeal in both the second appeals though much was attempted to be stated about the same in the grounds. The analysis of the evidence and the probabilities arising out of the same by the trial and First Appellate Courts regarding the execution of Exs.B.8 and B.9-Wills was not divorced from the material on record and what best can be stated from the grounds raised in the grounds of the second appeals is that there is a possibility of taking a second view on the said questions. The First Appellate Court being the final court of fact finding and the trial Court having the benefit of observing the demeanour of the witnesses, any remote possibility of a contrary view cannot be a ground for interference in the second appeal. The First Appellate Court being the final court of fact finding and the trial Court having the benefit of observing the demeanour of the witnesses, any remote possibility of a contrary view cannot be a ground for interference in the second appeal. For that reason, S.A.No.1458 of 2004 against the dismissal of A.S.No.83 of 2001 on the ground of limitation is untenable even without going into the question of limitation for A.S.No.83 of 2001 as a cross appeal or cross-objections, A.S.No.83 of 2001 having been filed only against the adverse findings regarding Exs.B.8 and B.9. If the findings of the trial and First Appellate Courts concerning the unacceptability of Exs.B.8 and B.9 are concerning a pure question of fact and do not involve any question of law, S.A.No.1458 of 2004 should, hence, fail. The decision reported in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and others JT 1995 (5) SC 163relied on by Sri N. Ashok Kumar, learned counsel for the appellants about considerations that governed the appreciation of the genuineness of a Will, hence, needs no further reference. 16. Items-1 to 3 of the plaint schedule being in the name of the 1st defendant and Ac.2.00 guntas of land out of item-2 being sold to the son-in-law by the 1st defendant are admitted, while the remaining property in item-2 and 400 square yards in item-7 are claimed to be with the daughters of the 1st defendant and the trial Court observed that whether the properties were available or not for partition in the light of the defence concerning items 4 to 7 can be determined during the final decree proceedings and the First Appellate Court also practically did not indulge in any determination concerning the claims of the daughters over the portions of items-2 and 7 or the non-availability of items 4 to 7 except accepting the sale of Ac.2.00 guntas of land in item-2 by the 1st defendant to his son-in-law. The trial and First Appellate Courts, thus, leaving open the determination of the availability of part of item-2 and items-4 to 7 for partition was not challenged by either party. 17. The plaintiff as PW.1 admitted about Urmila Bai and Indira Bai being his sisters. The 2nd defendant as DW.1 spoke about a portion of item-2 being given to Urmila Bai towards Pasupukumkuma and item-7 being given to Indira Bai. 17. The plaintiff as PW.1 admitted about Urmila Bai and Indira Bai being his sisters. The 2nd defendant as DW.1 spoke about a portion of item-2 being given to Urmila Bai towards Pasupukumkuma and item-7 being given to Indira Bai. The defendants 2 to 7, who filed their written statements after the death of the 1st defendant, specifically pleaded the properties in the name of the 1st defendant to be his exclusive self-acquired properties. They also pleaded about the interest of Urmila Bai and Indira Bai in portions of items-2 and 7 of the plaint schedule and they further pleaded that the suit is liable to be dismissed for mis-joinder of proper and necessary parties to the suit. A specific issue was framed by the trial Court in issue No.2 as to whether the suit is to be dismissed for mis-joinder of parties. The trial Court specifically noted that on the plea that the suit properties were joint family properties of the plaintiff and defendants 2 to 6, the wife and daughters of the 1st defendant were not necessary parties, but subsequent to the death of the 1st defendant after filing of the suit, the widow, sons and daughters of the 1st defendant are equally entitled to claim shares, and hence, the daughters of the 1st defendant were necessary parties to the suit. It was due to not impleading the daughters of the 1st defendant that the suit was held to be bad for non-joinder of necessary parties and dismissed. 18. The contentions and grounds in A.S.No.80 of 1998 by the plaintiff did not specifically deal with the impact of the failure to implead the daughters in the suit on the death of the 1st defendant though in the written arguments, it was contended that the issue of non-joinder of necessary parties was not framed and that in the appeal, on the death of the 7th defendant, the mother, the daughters were brought on record as respondents 8 and 9, but they remained ex parte, and hence, the plaintiff stated in the written arguments that all the legal heirs of the defendants 1 and 7 were on record and the suit, hence, cannot fail due to non-joinder of necessary parties. The plaintiff, hence, stated that even assuming the properties to be the self-acquired properties of the 1st defendant, the 1/8th share of the plaintiff may be declared since all the legal heirs entitled to shares in the properties of the 1st defendant were brought on record. In the impugned judgment, the First Appellate Court accepted the same in observing that the only ground on which the lower Court dismissed the suit for non-joinder of the daughters of the 1st defendant is of no consequence in view of impleading the daughters of the 1st defendant after the death of the 7th defendant as parties to the suit. 19. The substantial question of law framed by this Court, while admitting the two second appeals, is concerning the impact of impleading the daughters of defendants 1 and 7 at the appellate stage on curing any defect in the institution of the suit. The learned counsel for the parties referred to various precedents on this question. 20. In A.H. Pinto v. V. Chaniyappa and others (2001) 10 Supreme Court Cases 764, the Apex Court held that the scope of a second appeal cannot go beyond the issues decided in the trial Court and first Appellate Court. While the judgment of the trial Court answered the specific issue about the liability of the suit for dismissal for mis-joinder of parties, the First Appellate judgment, notwithstanding that a specific point was not framed on the issue, had considered and decided the question in para-26 of the impugned judgment, the question having been specifically adverted to in the written arguments of the plaintiff/ appellant. It is true that the specific issue was referring to misjoinder of parties and not non-joinder of parties, obviously due to the written statement of defendants 2 to 7 pleading that the suit is liable to be dismissed for mis-joinder of proper and necessary parties to the suit. Inartistic drafting of the plea might have led to the use of the word “mis-joinder” but the specific reference to the liability of the suit for dismissal with reference to proper and necessary parties makes the intention in taking the plea clearly to be about non-joinder of proper and necessary parties. Inartistic drafting of the plea might have led to the use of the word “mis-joinder” but the specific reference to the liability of the suit for dismissal with reference to proper and necessary parties makes the intention in taking the plea clearly to be about non-joinder of proper and necessary parties. At any rate, both the parties were put on notice by issue No.2 in the suit about the Court adjudicating the question of joinder of parties and its impact on the suit and when the question was raised and decided, both in the trial Court and in the first Appellate Court, dealing with the said question in the second appeal is within the ambit of the principle laid down by the Apex Court. 21. In Ram Khilona and others v. Sardar and others (2002) 6 Supreme Court Cases 375 also, the Apex Court was considering a situation where the High Court has decided the second appeal on a question neither taken in the memorandum of appeal nor taken in that form before the Courts below and had upset the concurrent decisions of the Courts on a finding recorded by it, which approach was held to be clearly against the law and spirit of Section 100 of the Code of Civil Procedure. In the present case, the question was specifically taken in the memoranda of second appeals and was also taken before and considered by both the Courts bellow. The pleading and the issue were specific though inaccurate in describing the question as of mis-joinder and the trail Court specifically adjudicated the effect of not impleading necessary parties and the plaintiff understood the question involved as such, and attempted to answer the same in the written arguments in A.S.No.80 of 1998. Further, the Courts below did not concur in their findings on the question with the First Appellate Court upsetting the conclusion of the trial Court due to impleading of the daughters in the first appeal as respondents 8 and 9 as the legal representatives of their deceased mother, the 7th defendant. The question thus specifically arising for consideration on the substantial question of law framed at the time of admission has to be decided within the law and spirit of Section 100 of the Code of Civil Procedure. 22. The question thus specifically arising for consideration on the substantial question of law framed at the time of admission has to be decided within the law and spirit of Section 100 of the Code of Civil Procedure. 22. Similarly, in Rajgopal v. Kishan Gopal and another (2003) 10 Supreme Court Cases 653,the Supreme Court was dealing with interference by the High Court on a finding of fact recorded by the First Appellate Court, which was the final court of fact. A pure finding of fact without involving any question of law much less a substantial one could not have been interfered with by the High Court in exercise of powers conferred upon it under Section 100 of the Code of Civil Procedure and the Supreme Court found even on fact that there was no ground whatsoever to interfere with the said finding recorded by the final court of fact. In this Case, there is no dispute about the facts involved and the defendants 1 and 7 admittedly have two daughters, impleaded as respondents 8 and 9 in the first appeal. The finding that the properties are the self-acquired properties of the 1st defendant is concurrent and the death of the 1st defendant after the institution of the suit and the death of his wife, the 7th defendant, after the institution of the first appeal and the two daughters being brought on record in the first appeal as the legal representatives of their mother, the 7th defendant, are also admitted. It is only the legal consequences of such admitted facts that are in question in the second appeal. By the time the suit was decided by the trial Court, the 1st defendant was no more and his daughters were not on record and irrespective of the nature of properties, the daughters were considered necessary parties on the death of the 1st defendant with the widow, sons and daughters being entitled to equal shares in the property of the 1st defendant. Even the written arguments of the plaintiff in A.S.No.80 of 1998 were more about the question no longer surviving after the legal representatives of the defendants 1 and 7 being brought on record in the first appeal and hence, there is no aspect of any pure finding of fact being interfered with in the second appeal in considering the question. 23. 23. In Thiagarajan and others v. Sri Venugopalaswamy B. Koil and others AIR 2004 SC 1913 (1), the Supreme Court was similarly referring to the High Court exceeding its jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case not contemplated under the limited scope of jurisdiction of the second appeal under Section 100 of the Code of Civil Procedure. As was stated, no reassessment or reappreciation or a roving enquiry into any factual aspect are involved herein, the substantial question of law formulated at the time of admission being about the consequences of admitted facts. 24. In Dharmarajan and others v. Valliammal and others (2008) 2 Supreme Court Cases 741also what the Apex Court was considering was a case where the questions formulated were neither questions of law nor substantial questions of law and the High Court was referring to a case, which was not even pleaded. The question formulated herein at the time of admission by a learned Judge of this Court was about the legal consequences of impleadment of the legal representatives of the 7th defendant at the appellate stage, which cannot be considered a pure question of fact and the legal consequences of the daughters coming on record in the first appeal as the legal representatives of the mother and not the father cannot be construed to be outside the scope of a question of law or for that matter, a substantial question of law. 25. In opposition to the above cited precedents relied on by Sri K. Panduranga Rao, learned counsel for the plaintiff, Sri N. Ashok Kumar, learned counsel for the appellants referred to Kulwant Kaur v. Gurdial Singh Mann AIR 2001 Supreme Court 1273in which the Apex Court pointed out that while it is true that in the second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumption and conjectures and resultantly there is an element of perversity involved, the High Court will be within its jurisdiction to deal with the issue. It was observed that perversity itself is a substantial question worth adjudication and what is required is a categorical finding on the part of the High Court as to perversity. It was observed that perversity itself is a substantial question worth adjudication and what is required is a categorical finding on the part of the High Court as to perversity. It was further observed that the legality of finding of fact cannot but be termed to be a question of law. While it should be reiterated that it is not the finding of fact that is in issue herein but consequences of the facts found that are in issue and if the legal effect of admitted facts is wrongly construed, interference with the same in the second appeal will not be interference with the final fact finding but interference on a substantial question of law. 26. The learned counsel for the plaintiff also relied on the decision of the Division Bench of this Court in Addepalli Venkata Laxmi v. Ayinampudi Narasimha Rao and others AIR 1994 Andhra Pradesh 72decided with reference to Order 1 Rules 9 and 13 and Section 96 of the Code of Civil Procedure, the Division Bench was of the view that it is the duty of the party to raise the objection about non-joinder of two daughters, who are also entitled to a share, in the written statement at the earliest point of time about the non-maintainability of the suit on the ground of not bringing on record proper or necessary parties. In that case, the objection was not taken at the trial stage or at the appellate stage or in the grounds of appeal before the High Court and was sought to be raised for the first time during arguments. The Division Bench, hence, was of the opinion that a party is not entitled to take objection at the appellate stage and that too without taking any such plea while setting forth his defence. In contrast, as already stated, the written statement of defendants 2 to 7 specifically raised the question of the effect of misjoinder of proper and necessary parties to the suit at the earliest point of time and a specific issue was framed and decided on merits by the trial Court and the question was the subject of the written arguments of the plaintiff himself and the decision by the First Appellate Court. The entitlement of the appellants to rely on such a contention in the second appeal, therefore, cannot be in question on any such ground. The entitlement of the appellants to rely on such a contention in the second appeal, therefore, cannot be in question on any such ground. This is not a case of a suit being sought to be defeated by reason of mis-joinder of parties or an objection about non-joinder or mis-joinder not being taken at the earliest possible opportunity even before the settlement of the issues. Order 1 Rules 9 and 13 of the Code of Civil Procedure to that extent have no adverse impact on the plea of the appellants herein and the proviso to Order 1 Rule 9 itself makes it clear that nothing in Order 1 Rule 9 shall apply to non-joinder of a necessary party. 27. Adverting to the indispensability of the impleading the daughters of defendants 1 and 7 in the suit itself, Sri N. Ashok Kumar, learned counsel for the appellants referred to certain precedents commencing from Mohana Velu Mudaliar v. Annamalai Mudaliar and another AIR 1923 Madras 337, wherein it was held that if the defendant takes the objection at a proper time, it is his right to have all the proper persons joined as plaintiffs and if after the objection has been raised, the plaintiff proceeds with the suit without taking steps to add the person or persons whose non-joinder has been objected and the Court finds that the objection is well founded, the suit must be dismissed. In the present case also, the plaintiff did not take any steps to implead his sisters in spite of a specific contention in the written statement and it is only in the first appeal that the sisters were brought on record as the legal representatives of their mother. 28. In Naba Kumar Hazra and another v. Radhashyam Mahish and others AIR 1931 Privy Council 229also, the issue was raised and decided by the trial judge and an appeal was preferred claiming the co-mortgagors to be not necessary parties. The High Court did not refer to the question and a request was made before the Privy Council for an opportunity of joining the co-mortgagor, which was negatived. The defect was noted to have been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it, which he did not avail. 29. The defect was noted to have been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it, which he did not avail. 29. In Chenthiperumal Pillai Chanthanamuthu Pillai v. D.M. Devasahayam 1956 Travancore Cochin 181, a Full Bench held that when an objection to the maintainability of the suit on account of the failure to implead a necessary party was expressly taken in the written statement and was the subject of a preliminary issue, the plaintiff persisting in the suit without joining the necessary parties cannot be allowed to remedying the defect in the appeal and the suit has to be dismissed. Of course, that was a case where the plaintiff expressly stated that he cannot be compelled to implead the necessary party and that he is prepared to take the risk of the proceeding with the suit without that party. However, the principle remains that if in spite of an objection raised at proper time, the plaintiff persists in the suit without joining the necessary parties, the suit has to be dismissed and the defect cannot be allowed to be remedied in appeal. 30. In Kanakarathanammal v. V.S. Loganatha Mudaliar and another AIR 1965 Supreme Court 271 , a Five Judge Bench of the Supreme Court held that notwithstanding Order 1 Rule 9 of the Code of Civil Procedure, if the parties not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. The Supreme Court also held that when a specific plea was taken in the trial Court and a clear and specific issue was framed, the party might have applied to add necessary parties, while the suit was being tried. If the party persisted in proceeding with the suit, it will be too late to allow to rectify the mistake before the Supreme Court. The Apex Court followed Naba Kumar Hazra and another v. Radhashyam Mahish and others (10 surpa). 31. If the party persisted in proceeding with the suit, it will be too late to allow to rectify the mistake before the Supreme Court. The Apex Court followed Naba Kumar Hazra and another v. Radhashyam Mahish and others (10 surpa). 31. In K. Bhaskar Rao v. K.A. Rama Rao 2010 (5) ALD 339 , a learned Judge of this Court was dealing with a suit for partition wherein the defendant in the written statement raised the plea of non-joinder of the two sisters of the parties for which the plaintiff stated in his rejoinder that as they were already married and were given sufficient share in the form of cash and articles, they were not necessary parties. The plaintiff came up with an application to implead the sisters as parties in the first appeal and the learned Judge rejected the request holding that the defect of non-joinder of necessary parties being fatal, the same cannot be cured by impleading them in the appeal and upheld the dismissal of the suit on the ground of non-joinder of necessary parties by the trial Court. The decisions reported in Naba Kumar Hazra and another v. Radhashyam Mahish and others (10 supra), Chenthiperumal Pillai Chanthanamuthu Pillai v. D.M. Devasahayam (11 supra) and Kanakarathanammal v. V.S. Loganatha Mudaliar and another (12 supra) were relied upon before the learned Judge in support of the proposition that non-joinder of sisters is a fatal defect and the suit for partition is liable to be dismissed even on that ground alone. 32. The principles laid down by the learned judge with reference to the three precedents cited before His Lordship squarely apply to the present case on a similar set of facts. The decision of the Division Bench in Addepalli Venkata Laxmi v. Ayinampudi Narasimha Rao and others (8 supra) was one where the objection about the non-joinder of necessary parties was taken for the first time during the arguments in the Letters Patent Appeal due to which the objection was not entertained, unlike the present case where the objection runs through out the litigation right from the written statement. 33. The question formulated by the learned Judge while admitting the second appeals cannot be brushed aside as not a substantial question of law notwithstanding any lack of clarity in the formulation of the question as contended by the learned counsel for the plaintiff. 33. The question formulated by the learned Judge while admitting the second appeals cannot be brushed aside as not a substantial question of law notwithstanding any lack of clarity in the formulation of the question as contended by the learned counsel for the plaintiff. The purport of the question framed is clear about the legal consequences of impleading the two daughters of the defendants 1 and 7 only in the first appeal as the legal representatives of the mother and such impleadment curing any defect in the institution of the suit itself. The two daughters of defendants 1 and 7 were claimed to have not been impleaded originally due to their being married prior to 1985 and the suit claiming the properties to be joint family properties. However, their non-joinder after the death of the 1st defendant is inexcusable as the widow, sons and daughters would have been entitled to equal shares in the share of the 1st defendant if the properties were joint family properties or in the entire properties, if the properties were self-acquired properties of the 1st defendant. In the event of acceptance of either the case of the plaintiff or the case of the defendants, the daughters undoubtedly became necessary parties on the death of the 1st defendant in view of non-admission of Exs.B.8 and B.9-Wills by the plaintiff in addition to his contention about the nature of properties being joint family properties. Much emphasis is attempted to be laid on the use of the word “mis-joinder of parties” in the written statement and in the issue framed by the trial Court, while the intent and purport is patent and clear that it was about the non-joinder of proper and necessary parties. While there was no conflict between the latest decision of the learned Single Judge and the earlier Division Bench of this Court, the conclusion on the admitted facts should be in favour of the appellants in S.A.No.888 of 2004. Under the above circumstances, impleading the respondents 8 and 9 in the first appeal will not cure the defect in the constitution of the suit at the time of its institution or at least since the death of the 1st defendant. Under the above circumstances, impleading the respondents 8 and 9 in the first appeal will not cure the defect in the constitution of the suit at the time of its institution or at least since the death of the 1st defendant. The decision in K. Bhaskar Rao v. K.A. Rama Rao (13 supra) following the decisions of the Privy Council and the Supreme Court apart from the decision of a Full Bench of Travancore Cochin is binding and the defect of nonjoinder of necessary parties cannot be cured by impleading them in the appeal and is fatal to the suit for partition. Therefore, the substantial question of law formulated at the time of admission of the second appeals is answered that impleading the two daughters of defendants 1 and 7 as the legal representatives of the 7th defendant, the mother, in the first appeal will not cure the fatal defect in the suit. 34. In the result, S.A.No.888 of 2004 has to be allowed. In the circumstances of the case, both the parties can be directed to bear their own costs in both the second appeals. 35. Therefore, S.A.No.1458 of 2004 against the dismissal of A.S.No.83 of 2001 concerning the non-acceptance of Exs.B.8 and B.9-Wills only is dismissed without costs. S.A.No.888 of 2004 against allowing A.S.No.80 of 1998 is allowed without costs and consequently, A.S.No.80 of 1998 on the file of III Additional District and Sessions Judge, Ranga Reddy stands dismissed without costs and the judgment and decree in O.S.No.419 of 1989 on the file of I Additional Senior Civil Judge, Ranga Reddy, dated 29-12-1997 stand restored and confirmed.