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MANU/SC/1401/2017

Equivalent Citation: 2017(4)RCR(Civil)695

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 319-320 of 2009

Decided On: 02.08.2017

Appellants: Sardar Surjeet Singh

Vs.
Respondent: Juguna Bai (Since Dead) and Ors.

Judges/Coram:
Arun Mishra and Mohan M. Shantanagoudar, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: K. Maruthi Rao, K. Radha and Anjani Aiyagari, Advs.

For Respondents/Defendant: Jeetendra Mohan Sharma, Sr. Adv., P. Venkat Reddy, Prashant Tyagi and
Anil Kumar Tandale, Advs.

Subject: Civil

Acts/Rules/Orders:

 Arbitration Act, 1940 - Section 21,

 Arbitration Act, 1940 - Section 29A;
 Code of Civil Procedure (CPC) - Order 1 Rule 10,
 Code of Civil Procedure (CPC) - Section 97,
 Code of Civil Procedure (CPC) - Section 151,
 Code of Civil Procedure (CPC) - Section 152

Cases Referred:

 T. Ravi v. B Chinna Narasimha MANU/SC/0279/2017 : 2017(3) SCALE 740;

 Venkata Reddy and Ors. v. Pethi Reddy MANU/SC/0024/1962 : AIR 1963 SC 992;
 Phoolchand and Anr. v. Gopal Lal MANU/SC/0284/1967 : AIR 1967 SC 1470;
 Bharat Indo v. Yakub Hassan MANU/UP/0040/1913 : 1913 ILR 35 All 159;
 Kedemath v. Pattu Lal MANU/OU/0102/1945 : ILR 20 Luck 557 : AIR 1945 Oudh 312;
 Joti Parshad v. Ganeshi Lal MANU/PH/0037/1961 : AIR 1961 Punj 120;
 Kasi v. v. Ramanathan Chettiar MANU/TN/0174/1947 : 1947-2 Mad LJ 523;
 Raja Peary Mohan v. Manohar MANU/WB/0055/1923 : 27 Cal WN 989 : AIR 1924 Cal 160;
 Parshuram v. Hirabai MANU/MH/0115/1957 : AIR 1957 Bom 59;
 S.S. Reddy v. Narayan Reddy MANU/SC/0788/1991 : (1991) 3 SCC 647;
 S. Satnam Singh and Ors v. Surender Kaur and Anr. MANU/SC/8431/2008 : 2009(1) R.C.R. (Civil)
600 : (2009) 2 SCC 562;
 Ct. A. Ct. Nachiappa Chettiar and Ors. v. Ct. A. Ct. Subramaniam Chettiar MANU/SC/0185/1959 :
(1960) 2 SCR 209
Subject
PERSONAL LAW MATTERS - MATTERS RELATING TO PARTITION
Disposition:
Appeal Allowed
ORDER
1. Heard the learned Counsel for the
parties. These appeals have been preferred
against the judgment and order dated
30.11.2007 passed by the High Court of
Andhra Pradesh in Civil Revision Petition
Nos. 3914 and 3144 of 2007, whereby the
High Court allowed the impleadment of
Respondent No. 3 in the final decree
proceedings on the basis of deed of
settlement dated 30.12.1978.
2. The facts indicate that Defendant Nos. 2
and 3 are sisters. Late Sardar Santh Singh,
with the consent of his wives, adopted the
Appellant herein-Sardar Surjeet Singh,
when he was three years old. After the
adoption, Smt. Juguna Bai gave birth to
one daughter-Sathnam Kaur, Defendant
No. 3. Later on, one adoption deed was
executed on 7.7.1978.
3. A suit for partition was filed in which the
Trial Court passed a preliminary decree on
11.10.1990 giving 1/3rd share to the
Appellant, 1/3rd share to be shared
between two wives-Rama Bai and Juguna
Bai, with 1/6th share each and remaining
1/3rd to Sathnam Kaur-daughter.
4. The appeal against the final decree was
ultimately withdrawn by the Plaintiff after
the death of Rama Bai, during the
pendency of the appeal. Thereafter, an
application was filed in the year 1993 for
passing of the final decree. Nima Kaur, the
foster daughter of Sardar Santh Singh,
filed I.A. No. 1491 of 1993 Under Order 1
Rule 10 Code of Civil Procedure for
impleading her as Defendant No. 4,
claiming herself to be foster daughter of
Sardar Santh Singh and, in view of the
settlement deed dated 30.12.1978, she
claimed 1/3rd share.
5. The Appellant resisted the application. It
was contended that she was not having
any right as the preliminary decree, which
had been passed in civil suit, had attained
Category:
finality. The existence of the settlement
deed dated 30.12.1978 was denied. On
12.7.1996, the Civil Judge dismissed the
application filed by Nima Kaur. She
preferred a revision in the High Court in
C.R.P. No. 3124 of 1996, to be impleaded
as Defendant No. 4 in the Suit being O.S.
No. 54/81, which was allowed vide order
dated 28.7.1997.
6. The Trial Judge, by a docket order dated
26.11.2002, directed the Plaintiff to carry
out the amendment and ordered that the
final decree proceedings be closed. Against
the said order, C.R.P. No. 6088/2002 in
O.S. No. 54/81 and C.R.P. No. 620/2003 in
I.A. No. 697/93 in O.S. No. 54/81 were
filed before the High Court.
7. The High Court allowed both the
CRPs and directed the Trial Court
to proceed with the final decree
proceedings only and dispose of
the same in accordance with law.
The High Court opined that it was
evident that admittedly no
challenge was made as against the
preliminary decree by Respondent
No. 4, the preliminary decree
passed on 11.10.1990 had become
final and even the appeal filed by
the Plaintiff had been dismissed on
6.4.1993 confirming the said
decree. A preliminary decree once
passed could not be set aside
unless and until the appeal was
filed. Mere allowing an impleading
petition, and that too during the
final decree proceedings, would
not entitle Respondent No. 4 to
plead that the preliminary decree
has to be reopened. Vide order
dated 8.12.2003, the High Court
opined that if at all Respondent
No. 4 has any say, within legal
parameter, the same is open to
her to be agitated.
8. Nima Kaur thereafter, filed an
application being I.A. No. 1258 of 2004 in
I.A. No. 697/93 in O.S. No. 54/81 to
receive a document dated 12.8.1979
purported to be a relinquishment deed but
the said application was rejected by the
Civil Judge vide order dated 8.12.2004.
Aggrieved thereby, C.R.P. No. 86/05 was
preferred by Nima Kaur, which was
dismissed by the High Court. The High
Court observed that these rights have to
be considered by the executing court, if
any, during final decree proceedings.
9. On 5.2.2007, the Civil Judge passed the
final decree allotting half share to the
Appellant, 1/6th share to Juguna Bai and
1/3rd share to Satnam Kaur. It was also
held by the said Court that Nima Kaur was
not entitled for any share in the suit
property and her remedy was to file a
separate suit. It would not be possible for
the Court to determine her share in the
final decree proceedings on the basis of the
deed dated 30.12.1978. Aggrieved
thereby, Juguna Bai and Satnam Kaur filed
C.R.P. No. 3914/07 and Nima Kaur filed
C.R.P. No. 3114/07. The High Court vide
impugned order dated 30.11.2007 directed
the Trial Court to examine the claim of
Nima Kaur independently so that she
would be able to establish her claim over
the property left by Sant Singh.
preliminary decree shall be modified to the
extent needed and shall also decide as to
who succeeded to the estate of the
deceased and re-determine the shares
accordingly. The said order has been
questioned before us in this appeal.
10. It was submitted by the learned
Counsel appearing on behalf of the
Appellant that once a preliminary decree
has been passed, determining the shares,
during the final decree proceedings, the
shares could not have been altered as has
been ordered by the High Court.
Preliminary decree had attained finality. It
was not an intervening event which has
taken place after passing of the preliminary
decree and before passing the final decree
which can only be taken into consideration
for redetermining of shares. The only
remedy available to workout any right, if at
all available to Nima Kaur, was to file an
independent suit to establish her right, title
or interest on the basis of deed dated
13.10.1978 or relinquishment deed of
1979 and not by way of filing application in
a final decree proceedings to get rid of the
preliminary decree, which has attained
finality.
11. Learned Counsel further submitted that
Nima Kaur otherwise would not have any
right, title or other interest in the property
left by the deceased. Document itself was
doubtful. Thus, the High Court has erred in
violating its own earlier order laying down
that preliminary decree would not be
reopened. The High Court has ordered
reopening of the preliminary decree which
was not permissible.
12. Learned Counsel appearing on behalf
of the Respondent has strenuously urged
that during the final decree proceedings,
the extent of the share to be allotted to
each of the Respondent parties can be
worked out. Once the gift deed has been
executed, in the form of settlement deed in
favour of Respondent No. 3 - Nima Kaur,
she was entitled to press her claim for
settlement of the said property during the
final decree proceedings. To that extent,
the shares of other members were rightly
required to be reduced. Learned Counsel
has relied upon various decisions of this
Court to be referred later.
13. After hearing the learned Counsel for
the parties, we are of the opinion that the
question whether preliminary decree can
be reopened, has been considered by this
Court in T. Ravi v. B Chinna Narasimha
[MANU/SC/0279/2017 : 2017(3) SCALE
740], in which reliance has been placed on
Venkata Reddy and Ors. v. Pethi Reddy
[MANU/SC/0024/1962 : AIR 1963 SC 992]
and in view of Section 97 of Code of Civil
Procedure it has been laid down that once
the matter has been considered in
preliminary decree, it cannot be reagitated
in the appeal against the final decree.
Preliminary decree is final with respect to
the shares. In T. Ravi v. B Chinna
Narasimha this Court held as under:
37. In the instant case preliminary
decree was passed in the year
1970 and the shares were
declared to the aforesaid extent of
the respective parties therein who
were the heirs of Late Nawab
Jung. Hamid Ali Khan, Defendant
No. 1, had only 14/104th share in
the disputed property. Preliminary
decree dated 24.11.1970 has
attained finality which was
questioned in appeal on limited
extent in the High Court which has
attained finality by dismissal of
LPA on 12.10.1977. Thus the
determination of shares as per
preliminary decree has attained
finality, shares of the parties had
been crystalised in each and every
property. Purchaser pendente lite
is bound by the preliminary decree
with respect to the shares so
determined and it cannot be re-
opened and whatever equity could
have bee claimed in the final
decree proceedings to the extent
of vendor's share has already been
extended to the purchasers.
38. In Venkata Reddy and Ors. v. Pethi
Reddy MANU/SC/0024/1962 : AIR 1963 SC
992, it has been laid down that the
preliminary decree for partition is final. It
also embodies the final decision of the
Court. The question of finality has been
discussed thus:
6. The new provision makes it clear that
the law is and has always been that upon
the father's insolvency his disposing power
over the interest of his undivided sons in
the joint family property vests in the
Official Receiver and that consequently the
latter has a right to sell that interest. The
provision is thus declaratory of the law and
was intended to apply to all cases except
those covered by the two provisos. We are
concerned here only with the first proviso.
This proviso excepts from the operation of
the Act a transaction such as a sale by an
Official Receiver which has been the
subject of a final decision by a competent
Court. The short question, therefore, is
whether the preliminary decree for
partition passed in this case which was
affirmed finally in second appeal by the
High Court of Madras can be regarded as a
final decision. The competence of the Court
is not in question here. What is, however,
contended is that in a partition suit the
only decision which ca be said to be a final
decision is the final decree passed in the
case and that since final decree
proceedings were still going on when the
Amending Act came into force the first
proviso was not available to the Appellants.
It is contended on behalf of the Appellants
that since the rights of the parties are
adjudicated upon by the Court before a
preliminary decree is passed that decree
must, in so far as rights adjudicated upon
are concerned, be deemed to be a final
decision. The word 'decision' even in its
popular sense means a concluded opinion
(see Stroud's Judicial Dictionary - 3rd ed.
Vol. I, p. 743). Where, therefore, the
decision is embodied in the judgment
which is followed by a decree finality must
naturally attach itself to it in the sense that
it is o(sic) longer open to question by
either party except in an appeal, review or
revision petition as provided for by law.
The High Court has, however, observed:
The mere declaration of the rights of the
Plaintiff by the preliminary decree, would,
in our opinion not amount to a final
decision for it is well known that even if a
preliminary decree is passed either in a
mortgage suit or in a partition suit, there
are certain contingencies in which such a
preliminary decree can be modified or
amended and therefore would not become
final.
It is not clear from the judgment what the
contingencies referred to by the High Court
are in which a preliminary decree can be
modified or amended unless what the
learned Judges meant was modified or
amended in appeal or in review or in
revision or in exceptional circumstances by
resorting to the powers conferred by
Sections 151 and 152 of the Code of Civil
Procedure. If that is what the High Court
meant then every decree passed by a
Court including decrees passed in cases
which do not contemplate making of a
preliminary decree are liable to be modified
and amended. Therefore, if the reason
given by the High Court is accepted it
would mean that no finality attaches to
decree at all. That is not the law. A
decision is said to be final when, so far as
the Court rendering it is concerned, it is
unalterable except by resort to such
provisions of the Code of Civil Procedure as
permit its reversal, modification or
amendment. Similarly, a final decision
would mean a decision which would
operate as res judicata between the parties
if it is not sought to be modified or
reversed by preferring an appeal or a
revision or a review application as is
permitted by the Code. A preliminary
decree passed, whether it is in a mortgage
suit or a partition suit, is not a tentative
decree but must, in so far as the matters
dealt with by it are concerned, be regarded
as conclusive. No doubt, in suits which
contemplate the making of two decrees - a
preliminary decree and a final decree - the
decree which would be executable would
be the final decree. But the finality of a
decree or a decision does not necessarily
depend upon its being executable. The
legislature in its wisdom has thought that
suits of certain types should be decided in
stages and though the suit in such cases
can be regarded as fully and completely
decided only after a final decree is made
the decision of the Court arrived at the
earlier stage also has a finality attached to
it. It would be relevant to refer to Section
97 of the Code of Civil Procedure which
provides that where a party aggrieved by a
preliminary decree does not appeal from it,
he is precluded from disputing its
correctness in any appeal which may be
preferred from the final decree. This
provision thus clearly indicates that as to
the matters covered by it, a preliminary
decree is regarded as embodying the final
decision of the Court passing that decree.
14. In the case of Phoolchand and
Anr. v. Gopal Lal
MANU/SC/0284/1967 : AIR 1967
SC 1470, this Court has laid down
that there can be variation in
shares in the preliminary decree.
Variation itself is a Decree. In a
case for partition, if any event
transpires after preliminary
decree, which necessitates the
change in shares, same can be
considered. This Court laid down
thus:
6. The next contention is that
there cannot be two preliminary
decrees and therefore when the
trial court varied the shares as
indicated in the preliminary decree
of August 1, 1942 there was no
fresh preliminary decree passed by
the trial court. It is not disputed
that in a partition suit the court
has jurisdiction to amend the
shares suitably even if the
preliminary decree has been
passed if some member of the
family to whom an allotment was
made in the preliminary decree
dies thereafter: (Parshuram v.
Hirabai "MANU/MH/0115/1957 :
AIR 1957 Bom 59'). So the trial
court was justified in amending
the shares on the deaths of Sohan
Lal and Smt. Gulab Bai. The only
question then is whether this
amendment amounted to a fresh
decree. The Allahabad High Court
in Bharat Indo v. Yakub Hassan
(MANU/UP/0040/1913 : 1913 ILR
35 All 159) the Oudh Chief Court in
Kedemath v. Pattu Lal
MANU/OU/0102/1945 : (ILR 20
Luck 557 : (AIR 1945 Oudh 312),
and the Punjab High Court in Joti
Parshad v. Ganeshi Lal
(MANU/PH/0037/1961 : AIR 1961
Punj 120) seem to take the view
that there can be only one
preliminary decree and one final
decree thereafter. The Madras,
Bombay and Calcutta High Courts
seem to take the view that there
can be more than one preliminary
decree: (Kasi v. v. Ramanathan
Chettiar( MANU/TN/0174/1947 :
1947-2 Mad LJ 523) Raja Peary
Mohan v. Manohar
MANU/WB/0055/1923 : (27 Cal
WN 989 : (AIR 1924 Cal 160), and
Parshuram v. Hirabai,
MANU/MH/0115/1957 : AIR 1957
Bom 59.
7. We are of opinion that there is nothing
in the Code of Civil Procedure which
prohibits the passing of more than one
preliminary decree if circumstances justify
the same and that it may be necessary to
do so particularly in partition suits when
after the preliminary decree some parties
die and shares of other parties are thereby
augmented. We have already said that it is
not disputed that in partition suits the
court can do so even after the preliminary
decree is passed. It would in our opinion
be convenient to the court and
advantageous to the parties, specially in
partition suits, to have disputed rights
finally settled and specification of shares in
the preliminary decree varied before a final
decree is prepared. If this is done, there is
a clear determination of the rights of
parties to the suit on the question in
dispute and we see no difficulty in holding
that in such cases there is a decree
deciding these disputed rights; if so, there
is no reason why a second preliminary
decree correcting the shares in a partition
suit cannot be passed by the court. So far
therefore as partition suits are concerned
we have no doubt that if an event
transpires after the preliminary decree
which necessitates a change in shares, the
court can and should (1)
MANU/MH/0115/1957 : A.I.R. 1957 Bom.
59. (3) : (1945) I.L.R. 29 Luck, 557. (5) :
[1947] II Mad. L.J. 523. (2) : (1913) I.L.R.
35 All. 159.(4) : A.I.R. 1961 Puni. 120. (6)
: [1923] 27 Cal. W.N. 989, do so; and if
there is a dispute in that behalf, the order
of the court deciding that dispute and
making variation in shares specified in the
preliminary decree already passed is a
decree in itself which would be liable to
appeal. We should however like to point
out that what we are saying must be
confined to partition suits, for we are not
concerned in the present appeal with other
kinds of suits in which also preliminary and
final decrees are passed. There is no
prohibition in the Code of Civil Procedure
against passing a second preliminary
decree in such circumstances and we do
not see why we should Rule out a second
preliminary decree in such circumstances
only on the ground that the Code of Civil
Procedure does not contemplate such a
possibility. In any case if two views are
possible-and obviously this is so because
the High Courts have differed on the
question-we would prefer the view taken
by the High Courts which hold that a
second preliminary decree can be passed,
particularly in partition suits where parties
have died after the preliminary decree and
shares specified in the preliminary decree
have to be adjusted. We see no reason
why in such a case if there is dispute, it
should not be decided by the court which
passed the preliminary decree, for it must
not be forgotten that the suit is not over till
the final decree is passed and the court
has jurisdiction to decide all disputes that
may arise after the preliminary decree,
particularly in a partition suit due to deaths
of some of the parties. Whether there can
be more than one final decree does not
arise in the present appeal and on that we
express no opinion. We therefore hold that
in the circumstances of this case it was
open to the court to draw up a fresh
preliminary decree as two of the parties
had died after the preliminary decree and
before the final decree was passed. Further
as there was dispute between the surviving
parties as to devolution of the shares of
the parties who were dead and that dispute
was decided by the trial court in the
present case and thereafter the preliminary
decree al- ready passed was amended, the
decision amounted to a decree and was
liable to appeal. We therefore agree with
the view taken by the High Court that in
such circumstances a second preliminary
decree can be passed in partition suits by
which the shares allotted in the preliminary
decree already passed can be amended
and if there is dispute between surviving
parties in that behalf and that dispute is
decided the decision amounts to a decree.
We should however like to make it clear
that this can only be done so long as the
final decree has not been passed. We
therefore reject this contention of the
Appellant.
The decision is distinguishable and cannot
be said to be applicable in view of the
factual matrix of the instant case where
the right has been asserted, which came
into existence before the preliminary
decree was passed and Nima Kaur was not
a party to suit. It also appears that it was
not the plea that was taken by any of the
parties during the course of preliminary
decree that she was having right, title or
interest on the basis of settlement/gift
deed dated 30.12.1978.
15. Learned Counsel has also relied
upon the decision of this Court in
SS Reddy v. Narayan Reddy,
MANU/SC/0788/1991 : (1991) 3
SCC 647, in which there was
change of law after passing of the
preliminary decree. In that
context, this Court has laid down
that since Hindu daughter's rights
in coparcenary property were not
recognized earlier, it should be
taken on the basis of the law
which prevails on the date of final
decree proceedings. In the
meanwhile, after passing of
preliminary decree the amendment
that has been taken place by way
of Amending Act was taken into
consideration and the final decree
was modified, accordingly. It was
also a case of subsequent event
after passing of the preliminary
decree which necessitated
redetermination of the shares,
otherwise preliminary decree was
final. Factual matrix is not the
same in the instant case. In S. Sai
Reddy v. S. Narayana Reddy and
Ors. (supra), this Court laid down
thus:
7. The question that falls for our
consideration is whether the
preliminary decree has the effect
of depriving Respondents 2 to 5 of
the benefits of the amendment.
The learned Counsel placed
reliance on Clause (iv) of Section
29A to support his contention that
it does. Clause (ii) of the Section
provides that a daughter shall be
allotted share like a son in the
same manner treating her to be a
son at the partition of the joint
family property. However, the
legislature was conscious that
prior to the enforcement of the
amending Act, partitions will
already have taken place in some
families and arrangements with
regard to the disposition of the
properties would have been made
and marriage expenses would
have been incurred etc. The
legislature, therefore, did not want
to unsettle the settled positions.
Hence, it enacted Clause (iv)
providing that Clause (ii) would
not apply to a daughter married
prior to the partition or to a
partition which had already been
effected before the
commencement of the amending
Act. Thus if prior to the partition of
family property a daughter had
been married, she was disentitled
to any share in the property.
Similarly, if the partition had been
effected before September 5, 1985
the date on which the amending
Act came into force, the daughter
even though unmarried was not
given a share in the family
property. The crucial question,
however, is as to when a partition
can be said to have been effected
for the purposes of the amended
provision. A partition of the joint
Hindu family can be effected by
various modes, viz., by a family
settlement, by a registered
instrument of partition, by oral
arrangement by the parties, or by
a decree of the court. When a suit
for partition is filed in a court, a
preliminary decree is passed
determining shares of the
members of the family. The final
decree follows, thereafter,
allotting specific properties and
directing the partition of the
immovable properties by metes
and bounds. Unless and until the
final decree is passed and the
allottees of the shares are put in
possession of the respective
property, the partition is not
complete. The preliminary decree
which determines shares does not
bring about the final partition. For,
pending the final decree the
shares themselves are liable to be
varied on account of the
intervening events. In the instant
case, there is no dispute that only
a preliminary decree had been
passed and before the final decree
could be passed the amending Act
came into force as a result of
which Clause (ii) of Section 29A of
the Act became applicable. This
intervening event which gave
shares to Respondents 2 to 5 had
the effect of varying shares of the
parties like any supervening
development. Since the legislation
is beneficial and placed on the
statute book with the avowed
object of benefiting women which
is a vulnerable Section of the
society in all its stratas, it is
necessary to give a liberal effect to
it. For this reason also, we cannot
equate the concept of partition
that the legislature has in mind in
the present case with a mere
severance of the status of the joint
family which can be effected by an
expression of a mere desire by a
family member to do so. The
partition that the legislature has in
mind in the present case is
undoubtedly a partition completed
in all respects and which has
brought about an irreversible
situation. A preliminary decree
which merely declares shares
which are themselves liable to
change does not bring about any
irreversible situation. Hence, we
are of the view that unless a
partition of the property is
effected by metes and bounds, the
daughters cannot be deprived of
the benefits conferred by the Act.
Any other view is likely to deprive
a vast Section of the fair sex of the
benefits conferred by the
amendment. Spurious family
settlements, instruments of
partitions not to speak of oral
partitions will spring up and nullify
the beneficial effect of the
legislation depriving a vast Section
of women of its benefits.
8. Hence, in our opinion, the High Court
has rightly held that since the final decree
had not been passed and the property had
not been divided by metes and bounds,
Clause (iv) to Section 29-A was not
attracted in the present case and the
Respondent-daughters were entitled to
their share in the family property.
16. Reliance has also been placed on a
decision of this Court in S. Satnam Singh
and Ors v. Surender Kaur and Anr.
MANU/SC/8431/2008 : [2009(1)
R.C.R.(Civil) 600: (2009) 2 SCC 562] in
which this Court laid down thus:
18. In certain situations, for the purpose of
complete adjudication of the disputes
between the parties an appellate Court
may also take into consideration
subsequent events after passing of the
preliminary decree.
In Ct. A. Ct. Nachiappa Chettiar and Ors. v.
Ct. A. Ct. Subramaniam Chettiar
[MANU/SC/0185/1959 : (1960) 2 SCR
209], it was held:
20. It would thus be seen that the
Respondent's share in the family properties
was not in dispute nor was his share in the
properties in Burma seriously challenged.
The only plea raised in respect of the latter
claim was that the court had no jurisdiction
to deal with it. This state of the pleadings
in a sense truly reflected the nature of the
dispute between the parties. It is common
ground that the family is a trading family
and there could be no doubt that the
assets of the family were partible between
the members of the family. It was on these
pleadings that the trial judge framed
fifteen issues and set down the case for
hearing.
19. While dealing with the application
Under Section 21 of the Arbitration Act,
1940 where one of the questions was as to
whether an immoveable property situated
in Burma could be a subject matter of
reference, in Phoolchand and Anr. v. Gopal
Lal [MANU/SC/0284/1967 : (1967) 3 SCR
153], it was held:
7. We are of opinion that there is
nothing in the Code of Civil
Procedure which prohibits the
passing of more than one
preliminary decree if
circumstances justify the same
and that it may be necessary to do
so particularly in partition suits
when after the preliminary decree
some parties die and shares of
other parties are thereby
augmented. We have already said
that it is not disputed that in
partition suits the court can do so
even after the preliminary decree
is passed. It would in our opinion
be convenient to the court and
advantageous to the parties,
specially in partition suits, to have
disputed rights finally settled and
specification of shares in the
preliminary decree varied before a
final decree is prepared. If this is
done, there is a clear
determination of the rights of
parties to the suit on the question
in dispute and we see no difficulty
in holding that in such cases there
is a decree deciding these disputed
rights; if so, there is no reason
why a second preliminary decree
correcting the shares in a partition
suit cannot be passed by the court.
So far therefore as partition suits
are concerned we have no doubt
that if an event transpires after
the preliminary decree which
necessitates a change in shares,
the court can and should do so;
and if there is a dispute in that
behalf, the order of the court
deciding that dispute and making
variation in shares specified in the
preliminary decree already passed
is a decree in itself which would be
liable to appeal. We should
however like to point out that
what we are saying must be
confined to partition suits, for we
are not concerned in the present
appeal with other kinds of suits in
which also preliminary and final
decrees are passed. There is no
prohibition in the Code of Civil
Procedure against passing a
second preliminary decree in such
circumstances and we do not see
why we should Rule out a second
preliminary decree in such
circumstances only on the ground
that the Code of Civil Procedure
does not contemplate such a
possibility.
Thus, subsequent event can be
taken consideration while working
out the preliminary decree into the
shape of final decree. It was also a
case of subsequent event. As such,
it is quite distinguishable. In the
instant case, the preliminary
decree has attained finality. The
High Court has earlier rightly
observed that preliminary decree
would not be reopened due to
impleadment which had been
ordered.
In our opinion, the High Court has
erred in law while directing that
further preliminary decrees can be
passed. It was not a case of
subsequent event or change of
law. The only remedy available to
Nima Kaur was to file a separate
suit. Accordingly, we restore the
order passed by the Civil Judge
and set aside the order passed by
the High Court in the revision
petition. The appeals are allowed
to the aforesaid extent. It is made
clear that we have not adjudicated
on the rights of Nima Kaur while
deciding this matter and we have
prima facie made the observations
to decide whether any share she
could claim in the final decree
proceedings. Therefore, fresh suit,
if any, to be filed by her, be
decided unfettered by any
observations made by us in the
order or in the final decree.
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