Madras High Court
Alagammal vs Gopal Lal (Air 1967 Sc 1470) Wherein This ... on 21 November, 2016
RESERVED ON : 15.11.2016
DELIVERED ON : 21.11.2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.11.2016
CORAM
THE HONOURABLE THIRU JUSTICE M. DURAISWAMY
C.R.P.(NPD)No.966 of 2014 &
M.P.No.1 of 2014
1.Alagammal
2.Chinnaponnu
3.Govindaraj
4.Rasathi
5.Pappathi ... Petitioners
v.
Minor Manikandan
S/o.Govindaraj
Rep. by next friend/guardian
mother Amutha ... Respondent
Civil Revision Petition filed under section 115 of the Civil Procedure Code against the fair and decreetal order dated 12.09.2013 made in I.A.No.567 of 2012 in O.S.No.31 of 2011 on the file of the learned Sub Court, Sankari.
For Petitioners : Mr.N.Manokaran
For Respondent : No appearance
O R D E R
Though notice was served on the respondent-plaintiff and his name has been printed in the cause list, none appeared on behalf of the respondent.
2. Challenging the fair and final order passed in I.A.No.567 of 2012 in O.S.No.31 of 2011 on the file of Sub Court, Sankari, the defendants have filed the above Civil Revision Petition.
3. The respondent-plaintiff filed the suit in O.S.No.31 of 2011 on the file of Sub Court, Sankari, for partition and permanent injunction.
4. After contest, the Trial Court passed a preliminary decree finding that the plaintiff is entitled to 1/5th share in the suit properties.
5. After the passing of the preliminary decree, the defendants filed an application in I.A.No.567 of 2012 in O.S.No.31 of 2011 to pass a supplementary preliminary decree in favour of the 5th defendant in respect of 4/5th share in the suit property. The 5th defendant has filed the affidavit in support of the said application for herself and on behalf of other defendants. In the affidavit she has stated that by judgment and decree dated 30.11.2011, the Trial Court passed a preliminary decree in favour of the plaintiff allotting 1/5th share and the remaining 4/5th share belongs to her by virtue of the compromise final decree passed in O.S.No.115 of 2010 on the file of District Munsif Court, Sankari. Further, she has stated that she is also paying the necessary court fee for the allotment of her share in the suit property. She has also further stated that there is no conflict of interest between herself and other defendants in respect of allotment of 4/5th share in her favour. The 5th defendant has also stated that after the passing of preliminary decree, she convened a Panchayat in the village and requested the plaintiff to divide the suit properties in five equal shares and allot four such share to her. Since the plaintiff refused to divide the suit property as per the preliminary decree dated 30.11.2011, the defendants have filed the said application seeking for passing of a supplementary preliminary decree in favour of the 5th defendant.
6. In the counter filed on behalf of the plaintiff, she has admitted that the preliminary decree was passed in O.S.No.31 of 2011 allotting 1/5th share to the plaintiff. However, the plaintiff disputed the remaining 4/5th share belongs to the 5th defendant. The plaintiff also disputed the averments stated in the affidavit filed in support of the application and sought for dismissal of the application.
7. The Trial Court dismissed the application finding that the defendants should have challenged the preliminary decree passed in O.S.No.31 of 2011 and without filing an appeal, the supplementary preliminary decree cannot be passed. The Trial Court had dismissed the application only on the ground that the defendants have not challenged the preliminary decree allotting 1/5th share to the plaintiff.
8. The learned counsel appearing for the petitioner submitter that the Trial Court has jurisdiction to pass a supplementary preliminary decree and there is no restriction with regard to the same. Further, the learned counsel submitted that preliminary decree passed by the Trial Court can be modified or varied by filing an application till the passing of final decree and there is no necessity for challenging the preliminary decree by way of an appeal. In support of his contention, the learned counsel relied upon the following judgments:-
(i) 2011 (9) Supreme court Cases 788 (Ganduri Koteshwaramma and another v. Chakiriyanadi and another) wherein, the Hon'ble Supreme Court held as follows:
"14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.
15. We are fortified in our view by a 3- Judge Bench decision of this Court in the case of Phoolchand and Anr. Vs. Gopal Lal (AIR 1967 SC 1470) wherein this Court stated as follows:
"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. . . . .. 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; ........... 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. . . 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. . . . .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."
19. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule 18 of C.P.C. In a suit for partition of immovable property, if such property is not assessed to the payment of revenue to the government, ordinarily passing of a preliminary decree declaring the share of the parties may be required. The court would thereafter proceed for preparation of final decree. In Phoolchand1, this Court has stated the legal position that C.P.C. creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings.
20. Section 97 of C. P.C. that provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree does not create any hindrance or obstruction in the power of the court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require.
21. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree. The view of the High Court is against law and the decisions of this court in Phoolchand and Anr. Vs. Gopal Lal (AIR 1967 SC 1470) "
(ii) AIR 1967 Supreme Court 1470 (Phoolchand and Another v. Gopal Lal ) wherein, the Hon'ble Supreme Court held as follows:
"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. 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."
(iii) 2002 (4) Civil LJ 97 (Shanthilal v. Mahendra Kumar and others) wherein, the Rajasthan High Court held as follows:
"17. After the judgment of the learned Single dated 19.11.87 and pendency of the Special appeal, first defendant Anoplal died on 26.11.87, therefore, the proceedings before the trial Court for final decree were pending. An application was filed by the plaintiff Mahendra Kumar for modification of the preliminary decree on 2.6.1988. It was prayed that the widow of Anoplal viz; Smt. Kamla Bai, being successor, was also entitled to a share in the family property. It is settled position of law that in a partition suit, there is no prohibition in passing more than one preliminary decree, if circumstances justify the same and that may be necessary to do so, particularly in the partition suit when after the preliminary decree, some party dies. Thus, the trial Court rightly modified the decree by distributing 1/3rd share of the property to each of the parties in accordance with the decree passed by this Court. Both the sons have been given 1/9th share and Smt. Kamla Bai 1/9th share in the property. We do not find any infirmity in the preparation of the second preliminary decree. Learned counsel has filed to point out any illegality in the order of the trial Court dt. 11.7.1990."
(iv) AIR 1981 Madras 307(1) [S.V.Muthu and others v. Veerammal and another] wherein, this Court held as follows:
"5. Section 37(3) indicates that if, at the time of filing the written statement, the defendant claims partition and separate possession of his share of the property, then the Court fee becomes payable immediately, computed on half the market value of his share or at half the rates specified in Section 3(2) of the Act depending upon whether such defendant has been excluded from possession or is in joint possession. It is this provision which had been taken advantage of by defendants 5 and 6 in the suit, who had prayed for in their written statement the separation of their shares and had also paid Court fee thereon and the preliminary decree declared their shares also. Section 37(3) of the Act does not, however, provide for a case to enable a defendant after the passing of the preliminary decree to ask for a separation of his share; but when all the parties are before the Court and the shares have not undergone any change, as in the present case, and the matter has not proceeded to a final decree, there cannot be any serious objection in principle, if a defendant, even after passing of the preliminary decree, is permitted to seek a separation of his share of the properties by payment of the court-fee. The contention of the learned counsel for the petitioners that no court-fee at all need be paid cannot be accepted as the Court separates on a request by the defendants their share of the properties as well. It appears to me that Section 37(3) of the Act would apply even with reference to a ease where a defendant seeks the partition and separate possession of his share of he properties after the passing of the preliminary decree, but only so long as the final decree proceedings are pending Indeed in Varada Appalanaidu v. Bodu Annamnaidu and Ors. A.I.R. 1928 Mad. 555. a Beech of this Court consisting of Ramesam and Devadoss, JJ., held that separation of this share could be effected in execution as well. In that case, in a suit by one of three reversioners where the other two were made defendants 2 and 8 for a declaration that all the three were entitled to the suit property as reversioners and for partition and the recovery of one-third share of the suit property, an issue was raised whether plaintiff, defendants 2 and 3 were reversioners and the issue was decided in plaintiff's favour end the suit was decreed. The 3rd defendant filed another suit for his one-third share wherein the 1st defendant contended that the suit was unnecessary in view of the decree in plaintiff's suit and in the course of execution, the 3rd defendant applied for partition. It was held that it was not open to the 1st defendant to contend that the 3rd defendant was not entitled to ask for a decree for his share on payment of court-fees as in a partition decree and especially so in view of his objection in the suit by the 3rd defendant. In that case also, the final decree proceedings were pending and the Bench held that it was open to the 3rd defendant to ask for a decree for his share on payment of court-fee. It must be remembered that this decision had been rendered at a time when the Tamil Nadu Court-fees and Suits Valuation Act, 1955 was not in force, especially Section 37 thereof In Nil Govindra Misra v. Sent. Rukmini Debi A.I.R. 1944 Cal. 421. a Division Bench of the Calcutta High Court held that a co-sharer, be he or she a plaintiff or defendant in a suit for partition, is entitled to claim a separate allotment at any stage before the final decree and that there can be partition by metes and bounds even of those properties in which he plantiff has no share but one or the other defendant claims separate allotment and a separate suit need not be brought for this purpose. In Smt. Bittan Devi and Ors. v. Rudra Sen Bajpai and Ors. A.I.R. 1986 All. 601. relied on by Mr. N.R. Chandran in has been held that when in a suit for partition, the defendants apply for the preparation of final decree by separation of their share, they desire to be treated as co-plaintiffs and allotted their share separately and that plaintiffs and also defendants standing in the category of plaintiffs must pay court fee before their prayer can be granted In has also been further pointed out that stamp duty, if any, payable at the time of the passing of the final decree shall also be payable by them. Referring to the provisions of Order 20, rule 18(2), Civil Procedure Code, it has been held that the courts of law generally lay down in the preliminary decree the plaintiff's share or rights in the property; but where the defendants desire that their share or interest to be also declared, the preliminary decree should contain such a declaration also. If the defendants' rights have not been declared in the preliminary decree, the aggrieved party can challenge the decree in appeal or can apply for review. But once the preliminary decree contains a declaration as to the defendants' share, they can, even after passing of the preliminary decree, apply for and have their share partitioned on payment of court-fee etc., as may be necessary under the law. Indeed, the Privy Council has pointed out in Lachmi Narayan Marwary v. Balmukund Marwary (1924)47 M.L.J. 44i 120 L.W. 491 : L. R.51 A. 321 : A.I.R. 1924 P. C. 198. that after decree it is open to any party to a suit to whose interest it is that further proceedings be taken to initiate the supplementary proceedings, but in the ordinary case it is the plaintiff who moves. If the preliminary decree already passed does not contain any declaration as to the rights of the defendants, their application for partition or separation of their share shall not be maintainable till they have the preliminary decree suitably modified, but when once the preliminary decree contains a declaration as to the defendants, share, they can, even after the passing of the preliminary decree, take steps for the actual separation of their share. Indeed, in the instant case, no such steps have been taken by the petitioners to modify the preliminary decree in any manner for having their shares also declared and until such time, it is not open to the petitioners to claim that they are entitled to the amount in deposit. It is undoubtedly open to the petitioners to take such steps as they may be advised to have the preliminary decree amended in such a manner as to include a declaration of their rights as regards their share in the properties as well and only then they can seek payment of the amount in deposit Without doing so, on the basis of the preliminary decree as it now stands, the petitioners cannot seek to withdraw the amount in Court deposit on the ground that they are entitled to the same. The result is, the refusal of the Court below to direct payment out is, therefore, correct, though for different reasons. The civil revision petition fails and is dismissed. No costs.
6. The dismissal of this civil revision petition does not preclude the petitioners from taking such steps as may be open to them before the Court below for a declaration of their share of the properties by a supplementary preliminary decree, if need be, and on payment of the necessary court-fee under Section 37(3) of the Tamil Nadu Court-fees and Suits Valuation Act, 1955."
(v) 2008 (2) CTC 208 ( Haji M.A. Ahmed Sadakathulla Maraicair v. A.Mohideen Abdul Khader and others) wherein, this Court held that when no final decree has been passed in the preliminary decree yet the remedy open to the respondent is to file a petition for passing another preliminary decree declaring his share along with other plaintiffs' share and then to proceed with the final decree proceedings.
(vi) 2016 AIR CC 230 (KAR) (Smt.Janaki v. Smt.Lalitha & others) wherein, the Karnataka High Court held as follows:
"20. Point No.(2): If the Court dealing with a suit for partition can conclusively decide the rights of the parties on the basis of the shares already declared in the preliminary decree in terms of Order 20 Rule 18(2) of CPC and when court can draw any number of preliminary decrees after the first preliminary decree is passed in suit for partition, inclusion of any property left out earlier cannot be called as incorrect or improper. Parties opposing such inclusion will be given an opportunity to file written statement as against such inclusion and the court is expected to pass one more preliminary decree in respect of property newly included deciding as to whether the property is liable for partition and if so what exactly is the share of the parties.
22. In paragraph 7 of the decision rendered in Phoolchand 's case (AIR 1967 SC 1470), it is held that passing of more than one preliminary decree is permissible if circumstances justify the same. It is further held that so fas as partition of suits are concerned, the court has got powers to alter the change in share if an event transpires after the preliminary decree. Though Apex Court was concerned with the alteration of the shares because of death of one of the parties in Phoolchand's case, the High Court of Patna in the case of Shub Karan (AIR 2009 SC (supp) 2863) and the High Court of Andhra Pradesh in the case of Somereddi (AIR 1959 AP 26) have relied upon the decision of Phoolchand for amplifying that even if a property is left out in the preliminary decree can be the subject matter in the final decree proceedings in order to avoid multiplicity of suits and there could be another decree after a full-fledged trial.
23. In the present case, the case of the plaintiff is that she was unaware of the property held by her father and by oversight she had forgotten to include 3.30 acres of land in the schedule appended to the plaint filed by her earlier. Contesting defendant No.1, who is respondent No.1 herein, has admitted in unequivocal terms that the property now sought to be included belonged to her father as well as the father of plaintiff and that it was his absolute property and the same has been given to her. If the property in question belonged to the father of the plaintiff and defendant No.1 and if there was no division, both of them would be entitled to share. Whether the father of the defendant No.1 has conveyed the property to defendant No.1 or whether the property now sought to be included has been bequeathed in favour of plaintiff and such other contentious issues will have to be decided after recording evidence of the parties. If the defendant No.1 has any valid defence to be raised as against the inclusion, nothing comes in the way of defendant No.1 to file objections in the form of written statement, on the basis of which, proper issues will have to be framed and evidenced will have to be recorded and the court has to give its finding on the nature of the property and such other relevant issues. Therefore, inclusion of left out properties in the final decree proceedings is justified and proper. There is no reason to take a view contrary to the one taken by the Hon'ble High Court of Patna in Sheo Punja Rai's case (AIR 2008 Pat 50) in which the decision in the case of Poolchand (AIR 1967 SC 1470) is referred to and relied upon. Hence Point No.(2) is answered in the affirmative."
(vii) 2013 (2) ILR 58 (Jose and another v. Chakkur and others) wherein, the Rajasthan High Court held as follows:
3. ..... The question whether a separate preliminary decree has to be passed or amendment of the preliminary decree already passed is permissible has to be decided after resolving the issue whether the properties after amendment is joint or otherwise and also partible. Probably, the preliminary decree passed having merged with the appellate decree, in a case of this nature, a fresh preliminary decree may be essential, if it is so found which the court below has to consider."
(viii) AIR 1992 Patna 125 ( Rajeshwar Singh v. Rajendra Singh and others) wherein, the Patna High Court held as follows:
14. The point as to whether more than one preliminary decree can be passed in a partition suit is no longer res integra and the same is settled by the Supreme Court in the case of Phoolchand v. Gopal Lal AIR 1967 SC 1470 which is as follows (at p. 1473 of AIR) :--
"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 the 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 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 as why a second preliminary decree correcting the shares in the 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. 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.........
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."
9. On a careful consideration of the materials available on record and the submissions made by the learned counsel appearing for the petitioners and also the judgments relied upon by him, it could be seen that a preliminary decree was passed in O.S.No.31 of 2011 on 30.11.2011 allotting 1/5th share out of five shares to the plaintiff. Since no appeal has been filed by the parties, the preliminary decree passed by the Trial Court has become final. That apart, the plaintiff has not filed any final decree application pursuant to the preliminary decree passed in the suit. In these circumstances, the defendants filed an application in I.A.No.567 of 2012 to pass a supplementary preliminary decree allotting 4/5th share to the 5th defendant. The 5th defendant relied upon the compromise decree dated 07.09.2010 passed in O.S.No.115 of 2010 on the file of District Munsif Court, Sankari. The said suit was filed by the 5th defendant as against the plaintiff's father (who was the 3rd defendant in O.S.115 of 2010) and others, for partition and permanent injunction. In the said suit, the defendants, including the 3rd defendant, who is the father of the plaintiff, relinquished their rights in the suit property in favour of the 5th defendant in O.S.No.31 of 2011. In these circumstances, the defendants have filed the application in I.A.No.567 of 2012 seeking for passing of a supplementary preliminary decree in favour of the 5th defendant in respect of 4/5th share.
10. As per the provisions of Order 20, Rule 18 of CPC, there is no impediment for passing more than one preliminary decree, if after passing of preliminary decree events have taken place necessitating readjustment of shares as declared in the preliminary decree, modification in the preliminary decree can be done by the Trial Court. Further, in a suit for partition, modification of preliminary decree or more than one preliminary decree prior to passing of final decree can also be done and even in the absence of an appeal preferred against a preliminary decree. The ratio laid down by the Apex Court in the judgment reported in 2011(9) Supreme Court Cases 788 (cited supra) squarely applies to the facts and circumstances of the present case.
11. In the judgment reported in AIR 1967 Supreme Court 1470 (cited supra) the Apex Court held that a second preliminary decree can be passed in partition suit, by which, the shares allotted in the preliminary decree already passed can be amended and if there is dispute between the surviving parties in that behalf and that dispute is decided, the decision amounts to a decree. Further, the Apex Court held that this can only be done so long as the final decree has not been passed.
12. It is settled position of law that in a suit for partition, there is no prohibition in passing more than one preliminary decree, if circumstances justify the same and that it may be necessary to do so. Therefore, it is clear that a preliminary decree has been passed is no bar for passing further preliminary decree, in the case till passing of final decree, if the situation demands so. When the final decree is yet to be passed, the remedy open to the 5th defendant is to file an application for passing another preliminary decree and then proceed with the final decree proceedings.
13. The ratios laid down in the judgments relied upon by the learned counsel for the petitioners squarely applies to the facts and circumstances of the present case.
14. The Trial Court has erroneously dismissed the application stating that a supplementary decree can be passed only if an appeal is preferred against the preliminary decree passed in the suit.
15. In view of the ratios laid down in the above referred judgments, the findings of the Trial Court cannot be sustained.
16. Since the Trial Court dismissed the application solely on the ground that no appeal has been preferred against the preliminary decree passed in O.S.No.31 of 2011, the fair and decreetal order passed in I.A.No.567 of 2012 in O.S.No.31 of 2011 are set aside and the matter is remitted back to the Trial Court for fresh consideration. The Trial Court is directed to decide the application afresh, on merits and in accordance with law, after giving an opportunity of personal hearing to the parties, uninfluenced by the earlier findings given by the Trial Court in the order dated 12.09.2013 in I.A.No.567 of 2012, within a period of two months from the date of receipt of a copy of this order. It is open to the parties to let in oral and documentary evidences before the Trial Court.
With these observations, the Civil Revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
21.11.2016
Index : Yes/No
Rj
To
The Sub Court,
Sankari.
M. DURAISWAMY,J.,
Rj
Order in
C.R.P.(NPD)No.966 of 2014 &
M.P.No.1 of 2014
21.11.2016
http://www.judis.nic.in