JUDGMENT : Prayer: Second appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 26.11.2007 passed in A.S.No.1 of 2004 by the Subordinate Judge, Kuzhithurai, confirming the Judgment and Decree passed in O.S.No.355 of 1993 dated 29.08.2003 by the Principal District Munsif, Kuzhithurai. The appellant herein filed O.S No.355 of 1993 on the file of the Principal District Munsif, Kuzhithurai seeking partition of 1/10th share in the suit properties. 2. According to her, the suit properties originally belonged to her grandfather Sankili. Sankili had five sons, namely, Sankaran, Chithirai, Kochupillai, Chellappan and Palayyan. The plaintiff and the fifth defendant were born to Chithirai through the sixth defendant Mariyamma. Following the demise of Chithirai, Mariyamma got married to Chithirai's brother Kochupillai. Through that wedlock, two sons D3- Vijayan and D4-Dhas were born to her. The case of the plaintiff is that she and the fifth defendant alone are entitled to inherit the estate of their father Chithirai since their mother got married to Kochupillai. 3. Defendants 3, 4 and 6 filed a joint written statement controverting the plaint averments. The first defendant Chellappan also filed an independent written statement. The second defendant Palayyan remained ex-parte. During the pendency of the trial, Mariyamma passed away. The plaintiff examined herself as P.W.1 and marked Ex.A.1 and Ex.A.2. The second defendant examined himself as D.W.1. The third defendant examined himself as D.W.2. Ex.B.1 to Ex.B.21 were marked. At this stage, the counsel for the plaintiff filed the following statement : “The property sought to be partitioned are plots allotted to one Sankili who died leaving behind five sons. They are as follows:- Sankili Sankaran Chithirai Kochupillai (died 1/5) Chellappan (D1)(1/5) Palayyan (D2)(1/5) sold to three brothers viz. Kochupillai, Chellappan and Palayyan Ex.B.4 & Ex.B.5 Plff. 1/15 D5 1/15 D6 1/15 Vijayan (D3) Dhas (D4) One of the sons of Sankili viz. Sankaran sold his 1/5th share to his three brothers Kochu Pillai, Chellappan and Palayyan. So Kochu Pillai, Chellappan and Palayyan got 1/3rd of 4/5 share each. Chithirai got 1/5 share only. Chithirai died leaving behind two daughters and a widow. The daughters are plaintiff and 5th defendant. The widow is 6th defendant. So each heir will get 1/15 share. The widow of Chithirai viz.6th defendant is subsequently married by Kochu Pillai and defendants 3 and 4 are born to 6th defendant. Chithirai got 1/5 share only. Chithirai died leaving behind two daughters and a widow. The daughters are plaintiff and 5th defendant. The widow is 6th defendant. So each heir will get 1/15 share. The widow of Chithirai viz.6th defendant is subsequently married by Kochu Pillai and defendants 3 and 4 are born to 6th defendant. Now 6th defendant died and 3 and 4 are recorded as the heir of 6th defendant as per I.A.No.389/2003. So defendants 3 and 4 are entitled to get 1/15 share of 6th defendant in addition to their other shares. The second defendant sold 5 cents to defendants 3 and 4 in item 1 under Ex.B.10 sale deed. The plaintiff is not a party to Ex.B.12 partition arrangement and hence she is not bound by it. Now the following are the shares of parties:- Parties Share Plaintiff 1/15th share in item 1 to 3 1st defendant 1/3rd of 4/5th share in all the items 2nd defendant 1/3rd of 4/5 share minus 5 in item No.1 and 1/3rd of 4/5 share in items 2 and 3. Defendants 3 and 4 1/3rd of 4/5 share plus 1/15 plus 5 cents in item No.1 and 1/3 of 4/5 share plus 1/15 share in items 3 and 4. 5th defendant 1/15 share in item 1 to 3. Partition has to be effected in accordance with the present possession and enjoyment of the parties inclusive of their buildings. 27.08.2003. Advocate..” In view of the aforesaid statement filed by the counsel for the plaintiff, the trial Court passed the following decree : “item No.1 to 3, 1/15th share is allotted to the plaintiff. In all the items, 1/3 rd of 4/5 share is allotted to the 1st defendant. In item No.1, 1/3 rd of 4/5 share + 1/15 share + 5 cents and in items 3 and 4, 1/3 of 4/5 share + 1/5 share is allotted to the 3 rd and 4th defendants.” 4.Challenging the said decree and judgment, the plaintiff filed A.S No.1 of 2004 before the Sub Court, Kuzhithurai. The first appellate court by the impugned judgment and decree dated 26.11.2007 confirmed the decision of the trial Court and dismissed the appeal. Questioning the same, this second appeal came to be filed. The first appellate court by the impugned judgment and decree dated 26.11.2007 confirmed the decision of the trial Court and dismissed the appeal. Questioning the same, this second appeal came to be filed. The second appeal was admitted on the following substantial question of law:- “Whether the Courts below erred in passing preliminary decree based solely on the statement of shares filed by the plaintiff's counsel even though it suffered from an apparent error?” 5. The learned counsel appearing for the appellant submitted that the plaintiff ought to have been granted 1/10th share in the suit items; When Mariyamma was entitled to 1/3rd share in Chithirai's estate and when that devolved on the sons born through Kochupillai, by the very same logic, the plaintiff will be entitled to 1/4th of what Mariyamma inherited from Kochupillai also; the counsel for the plaintiff had on his own submitted a statement; the same was not signed by the plaintiff. Her submission is that this Court has a duty to render substantial justice as the plaintiff cannot be bound by such a statement. 6. Per contra, Mr.K.N.Thampi, learned counsel appearing for respondents 2 and 3 submitted that the trial Court had passed a consent decree and that it is not appealable. The first appellate Court had correctly held that when the plaintiff's counsel had himself filed a statement of shares, and the trial Court had accepted the same and passed preliminary decree, the same is not open to challenge. The learned counsel also pointed out that when Mariyamma passed away, the plaintiff filed I.A.No.389 of 2003 in which she had stated that Vijayan, Dhas and Mary alone should be recorded as her legal heirs. In other words, the plaintiff did not wish to be recorded as the daughter of Mariyamma. Such a stand amounts to relinquishment of the share which she might have claimed through her mother. The learned counsel strongly submitted that the counsel who appeared for the plaintiff is a well known and reputed practitioner and that the statement of shares filed by him was in consonance with the stand already taken by the plaintiff that she did not want to be recognised as the daughter of Mariyamma. The learned counsel relied on a catena of decisions in support of his contention that a counsel has the authority to enter into compromise on behalf of the party. The learned counsel relied on a catena of decisions in support of his contention that a counsel has the authority to enter into compromise on behalf of the party. He drew my attention to the decisions reported in (1992) 1 SCC 31 (Byram Pestonji Gariwala V. Union Bank of India), AIR 2003 SC 4596 (Jineshwardas V. Jagrant), (1975) 2 SCC 244 (Monoharbahal Colliery V. K.N.Mishra), (2010) 5 SCC 104 (Shanti Budhiya Vesta Patel V. Nirmala Jayprakash Tiwari) and AIR 1982 SC 1249 (State of Maharashtra V. Ramdas Shrinivas Nayak). 7. Shri.Godwin, learned counsel appearing for respondents 7 to 9 adopted the stand of the learned counsel for R2 and R3. 8. I carefully considered the rival contentions and went through the evidence on record. The relationship among the parties is not in doubt. It is well settled that when a widow remarries, she is not disqualified from inheriting what she is otherwise entitled to on account of her first marriage. Mariyamma was obviously entitled to 1/3rd share in the estate of Chithirai. Merely because she married Kochupillai, brother of Chithirai, Mariyamma cannot be deprived of her 1/3rd share in the estate of Chithirai. 9. When Mariyamma passed away, the 1/3rd share which she inherited from Chithirai will devolve in equal shares not only on the plaintiff Rajam and the fifth defendant Mary but also on Vijayan and Dhas. The daughters born through Chithirai and the sons born through Kochupillai are the children of Mariyamma and hence they will be equally entitled to what was left by her at the time of her demise. It is also admitted that Mariyamma died intestate. Therefore, the plaintiff Rajam will be entitled to 1/4th of what Mariyamma inherited from Chithirai and Kochupillai. Chithirai and Kochupillai were entitled to 1/5th share each in the entire estate. Mariyamma was entitled to 2/15th share in the entire suit property. If Dhas and Vijayan are each entitled to 1/4th out of 2/15th share of the deceased Mariyamma, then obviously the plaintiff Rajam will also be entitled to 1/4th of 2/15th share of Mariyamma. Rajam was already entitled to 1/15th share by virtue of being a daughter of Chithirai. Adding the shares together (1/15 + 1/30), the plaintiff would be entitled to 1/10th share in the suit items. 10. Rajam was already entitled to 1/15th share by virtue of being a daughter of Chithirai. Adding the shares together (1/15 + 1/30), the plaintiff would be entitled to 1/10th share in the suit items. 10. Now the only question that arises for my consideration is whether the plaintiff's present appeal should be thrown out merely because her advocate filed a statement of shares agreeing to receive only 1/15th share. But this statement of shares filed by her counsel was categorically disowned by the plaintiff. The suit was filed in the year 1993 and the preliminary decree was passed only on 29.08.2003. There was obviously no tearing urgency. The Hon'ble Supreme Court in Byram Pestonji Gariwala v. Union Bank of India (1992) 1 SCC 31 observed as follows : “37....it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted. This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession.” 11.Admittedly, the statement of shares filed by the counsel did not contain the signature of the plaintiff. The statement called upon the court to allot 1/15th share even though the plaintiff was entitled to 1/10th share. In such circumstances, the court ought to bear in mind the mandate set out in Order 23 Rule 3 of CPC. The said provision requires the court to be satisfied that a suit has been adjusted wholly or in part by any lawful agreement or compromise before it passed a decree in accordance therewith. In this case, though the trial court was not disposing of the matter based on a compromise, still, an analogical approach must have been adopted. The trial Judge ought to have satisfied his judicial conscience that the statement filed by the counsel had the consent of the party. In this case, though the trial court was not disposing of the matter based on a compromise, still, an analogical approach must have been adopted. The trial Judge ought to have satisfied his judicial conscience that the statement filed by the counsel had the consent of the party. The plaintiff could have been asked to appear in person or the counsel could have been asked to file an affidavit sworn to by the party. 12. Usually, in such circumstances, the plaintiff must file a review petition before the very same Judge. Instead of filing a review petition, an appeal was filed. But the fact remains that the appeal was filed in time i.e., on 29.10.2003. One of the grounds taken in the appeal memorandum was that the appellant had neither seen nor signed the document submitted by her counsel. It was further alleged that her advocate without her consent, had filed an erroneous statement agreeing to 1/15th share in the suit properties. When such a categorical contention was taken by the plaintiff, the first appellate court ought to have disposed of the appeal at the threshold relegating the plaintiff to move the trial Court. The appeal filed by the plaintiff was taken up and given a disposal only on 26.11.2007. If only the first appeal had been given an early disposal on this ground when it was formally numbered and admitted, then probably, the plaintiff could have moved the very same trial judge who passed the preliminary decree. 13. In my view, the trial court as well as the first appellate court erred. For the mistake committed by the Courts, the plaintiff cannot be deprived of the legitimate share to which the plaintiff is otherwise entitled. An appeal against a consent decree is not maintainable. But where it is shown that there has been no consent, an appeal would certainly lie. Courts cannot go by mere form. When the appellate court is satisfied that the impugned decree was not authorised by the consent of the party, it is obliged to decide the appeal on merits. The substantial question of law is answered in favour of the appellant. The judgment and decree passed by the Courts below are modified. The plaintiff is entitled to 1/10th share in the suit properties. The shares of the other persons accordingly will get adjusted. The substantial question of law is answered in favour of the appellant. The judgment and decree passed by the Courts below are modified. The plaintiff is entitled to 1/10th share in the suit properties. The shares of the other persons accordingly will get adjusted. I make it clear that the outcome of this appeal will not amount to casting any aspersion on the counsel concerned. This second appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.