Gujarat High Court
Kumari vs Huned on 9 December, 2011
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
Gujarat High Court Case Information System
Print
SCA/9182/2004 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9182 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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KUMARI
BILKISHBEN D/O.DECD. ISHAKBHAI A KADARBHAI - Petitioner(s)
Versus
HUNED
SAIFUDDIN & 16 - Respondent(s)
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Appearance :
MR
KV SHELAT for
Petitioner(s) : 1,
UNSERVED-EXPIRED (R) for Respondent(s) : 1 -
2.
RULE SERVED for Respondent(s) : 1.2.1, 1.2.2,1.2.3 - 2,
2.2.2,2.2.3
RULE SERVED BY DS for Respondent(s) : 3 - 9.
- for
Respondent(s) : 10 -
11.
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CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 09/12/2011
CAV
JUDGMENT
1. The present application under Article 227 of the Constitution is at the instance of original plaintiff No.2 of Regular Civil Suit No.4400 of 1987 instituted in the Court of City Civil Judge at Ahmedabad challenging the legality and validity of order dated 10/03/2004 passed by the Aux. Cham. Judge, Court No.16, Ahmedabad below Exh.121 in Reference No.6 of 1998 in Civil Suit No.4400 of 1987.
2. The question of law which falls for my consideration in this application under Article 227 is as under:
"Whether the Court in exercise of powers under Order 1, Rule 10 of Clause (2) of Code of Civil Procedure can implead a party in a suit for partition of property after preliminary decree for partition is passed and before the final decree is drawn and further whether such a party impleaded after the preliminary decree can be joined as co-plaintiffs?"
3. The facts relevant for the purpose of deciding this petition can be summarized as under:
4. Petitioner herein preferred Civil Suit No.4400 of 1987 as a power of attorney of her late father, Ishakbhai Abdul Kadarbhai Rupawala for partition of undivided properties in metes and bounds as per the Shia Law and also for rendition of the accounts. The case of the petitioner as a power of attorney of original plaintiff-her late father Ishakbhai Abdul Kadarbhai Rupawala, is that the properties detailed in paragraph No.13 of plaint are in the joint names of four brothers of the original plaintiff and the same have not still been divided as per the provisions contained in Section 77 of the Mahomedan Law. It was prayed that the plaintiff has 7/32 share in the joint property shown in paragraph No.13 of the plaint. It was prayed that the residential property bearing City Survey No.370 in Saifee Maholla, Astodia, Ahmedabad may be partitioned equally in metes and bounds as per the provisions contained in Section 77 of the Mahomedan Law.
5. The City Civil Court, Ahmedabad rejected the Regular Civil Suit and ultimately vide judgment, order and decree allowed the suit and declared that the original plaintiff is entitled 7/32 share in the properties mentioned in paragraph No.13 of the plaintiff. The operative part of the order is reproduced herein below:
"The plaintiff is entitled to 7/32 share in the properties mentioned in para 13 of plaint, exh.1, and therefore the matter be sent to the Commissioner for Taking Accounts for effecting partition by metes and bounds and to put the plaintiff in her respective possession, but if it is not possible or convenient, then to carry out partition as per provisions of the Partition Act, The Commissioner for taking Accounts is also directed to take accounts of the income of rented property from the defendants Nos.1 and 2.
The preliminary decree in terms of the above order shall be drawn up."
6. It appears from the record and as pleaded by the petitioner that during the pendency of Regular Civil Suit, original plaintiff Ishakbhai father of the petitioner by way of an oral gift decided to give his share in the property to the petitioner. Such oral gift which was made in the past was confirmed in the form of a declaration made before the Executive Magistrate, Ahmedabad on 27/08/1990. Record also reveals that the deed of declaration of gift came to be produced in the suit at Exh.74 and as original plaintiff - Ishakbhai passed away the names of the petitioner and her mother - Rababben, widow of deceased - Ishakbhai were substituted and they were joined as plaintiffs.
7. It deserves to be noted that Ishakbhai during his lifetime married for the second time with Rubabben, defendant No.2 and out of the said wedlock with Rubabben, the present petitioner was born. Late Ishakbhai's first wife passed away and out of the wedlock with the first wife, Ishakbhai had two daughters Amina and Tara.
8. After the preliminary decree was ordered to be drawn determining the share of the original plaintiff late Ishakbhai, the two daughters of late Ishakbhai from the first marriage preferred an application Exh.121 with the City Civil Court in the said suit praying that they may be permitted to be impleaded as parties in Regular Civil Suit No.4400 of 1987 in their capacity as legal heirs of late Ishakbhai. Amina and Tara are respondents No.10 and 11 in this petition. They further pleaded that they also have an equal share in the estate of their late father Ishakbhai. They further pleaded that they were deliberately not joined in the Regular Civil Suit which was preferred and when they learnt about the same they thought fit to prefer this application Exh.121.
9. The learned Judge adjudicated the application and allowed the same. The operative part of the impugned order dated 10/03/2004 is as under:
"This chamber summons application is allowed in terms of para 5-A and 5-B with direction that plaintiff will join third parties as co-plaintiff and shall amend the plaint as prayed for by the third parties in terms of para 5-A and 5-B."
10. Aggrieved by this order passed by the learned Civil Judge, the petitioner herein thought fit to challenge the same by way of this application under Article 227 of the Constitution.
11. I have heard learned Counsel Mr.K V Shelat appearing for the petitioner and learned Counsel Mr. H M Parikh for respondents No.10 and 11. Though other respondents have been served but they have not chosen to appear either in person or through a Lawyer.
12. Learned Counsel for the petitioner vehemently submitted that the impugned order under challenge is erroneous in law and deserves to be quashed and set aside. He submitted that after a preliminary decree is drawn by the Court in a suit for partition determining the shares of the respective parties the Court becomes functus officio as there is no power with the Court to implead any new party and that to as co-plaintiffs. He further vehemently contended that when late Ishakbhai's share in the property which was the subject matter of suit is solely given to the petitioner, there is no question of respondents No.10 and 11 calming any share on the basis of they being a step daughters on the death of Ishakbhai because even during the lifetime of Ishakbhai, Ishakbhai seized to be having any proprietary interest in the suit property and therefore respondents No.10 and 11 have no right, title and interest either on the date of the suit or on the date of the decree or on the date of drawing of preliminary decree. He further contended that after the preliminary decree was drawn by the City Civil Court the matter was referred to the Commissioner for taking accounts of the Commissioner after public advertisement in the year 2001 auctioned the properties, confirmed the sale in favour of the third party and the amount towards auction proceeds were deposited in the City Civil Court. The Commissioner had only to distribute the amount as per the share already worked out in the preliminary decree dated 16/04/1998 and at that stage respondents No.10 and 11 with a view to extort money and with an oblique motive preferred application Exh.121 for being joined as party and that too as original plaintiff in the suit which was already disposed of by a preliminary decree. He vehemently submitted that if at all the Court comes to the conclusion in a given case that the presence of a third party is necessary for deciding the question involved in the suit, he or she can be joined as defendant if he or she either necessary or proper party, but never as a co-plaintiff unless the interest's of the plaintiff on record and such third parties are common interests and those third parties also claim the same relief against the defendants. To substantiate this contention learned Counsel has relied upon a ruling of this High Court rendered by a learned Single Judge in the case of Mahechchha Corporation & Ors., Vs. Bhagwandas Dayaram & Ors., reported in AIR 1995 GUJARAT
22. He submitted that the application is mala-fide and preferred with ulterior motive. He submitted that the application ought to have rejected by the learned Judge.
13. Per contra, learned Advocate Mr.H M Parikh for respondents No.10 and 11 vehemently submitted that learned Judge has rightly allowed the application Exh.121 and by allowing the same the learned Civil Judge has not committed any jurisdictional error warranting any interference at the hands of this Court in exercise of powers under Article 227 of the Constitution. He would submit that respondents No.10 and 11 in their capacity as daughters of late Ishakbhai from the first marriage of late Ishakbhai can legitimately claim share in the properties of late Ishakbhai. He would submit that respondents No.10 and 11 are not disputing 7/32 share as of late Ishakbhai as determined by the Court but of that they are asserting their right to have equally share from 7/32. He would submit that the petitioner knowing fully well that the daughters of her father from the first marriage are very much alive deliberately with a view to deprive them of their rights did not join them in the suit for partition. He submitted relying upon a judgment rendered by learned Single Judge of Hon'ble Karnataka High Court in the case of Smt. Aswathamma Vs. H.M. Vijayaraghava, reported in AIR 1999 21 that respondents No.10 and 11 can definitely be impleaded as parties in the suit even after a preliminary decree has been passed as it cannot be said that proceedings in the suit have come to an end. He would submit that the proceedings in the suit continue when the application for final decree is made and when subsequent and new developments takes place, then keeping in view the subsequent developments or subsequent events, it is always open to the Court to modify the decree under law taking into consideration subsequent developments.
14. Having heard learned Counsel for the respective parties and having gone through the materials on record, more particularly, the impugned order under challenge, I am of the view that the Court below has not committed any error much less an error of law warranting any interference in exercise of my supervisory jurisdiction under Article 227 of the Constitution for the reasons which I shall record herein below.
15. The question of addition of parties under O.1 R.10 of Code of Civil Procedure is generally not one of initial jurisdiction of the Court, but of a judicial discretion which is to be exercised in view of all the facts and circumstances of a particular case, but in some cases like in the present one it may raise controversies as to the power of the Court, in contradictions to its inherent jurisdiction.
16. I am of the view that as such there is no legal embargo against addition of any new parties after a preliminary decree in a suit for partition has been passed. It is well settled that a suit for partition stands disposed of only with the passing of the final decree. If a decree is in the nature of a preliminary decree of partition then in that case the suit would continue and would remain under the control of the Court till either party moves for passing the final decree. However, what is important is that impleadment of additional parties subsequent to the passing of the preliminary decree is permissible only if none of the questions already settled by the preliminary decree are not to be reopened by the Court as a consequence of such impleadment. The addition of parties can be allowed at that stage only on condition that the further proceedings to be taken in the suit will be only on the basis of the preliminary decree already passed and none of the questions settled by the preliminary decree will be allowed to be reagitated on the ground that the person newly impleaded was not before the Court at the time of the passing of the preliminary decree.
17. I am fortified in taking this view by a Division Bench Judgment of Kerala High Court in the case of Neelkantha Pillai Ramchandran Nair Vs. Ayyappan Pillai Kumara Pillai, reported in AIR 1978 Kerala 152. The issue before the Division Bench of the Kerala High Court was almost the same and I am in complete agreement with the proposition of law which has been explained in this regard. In paragraph Nos.4 and 5 the Division Bench has held as under:
"4.
After having given our anxious consideration to all aspects of the matter, we are of opinion that (in cases such as suits for redemption or partition) where the passing of a preliminary decree is contemplated, the power conferred under O. 1, R. 10, C. P. C. is to be regarded as circumscribed by the provisions contained iri S. 2 (2) and S. 97 of the Code. As pointed out by the Supreme Court in Venkata Reddi v. Pethi Reddi (AIR 1963 SC 992), S. 97, C. P. C. clearly indicates that in respect of the matters covered by a preliminary decree, the said decree is to be regarded as embodying the final decision of the court passing it. It will not, therefore, be reasonable to understand the provision in O. 1, R. 10, C. P. C. as empowering the impleadment of additional parties in a suit in circumstances which would necessitate the ripping open of the determination made in the preliminary decree already passed in the suit. However, one can very well conceive of several situations where an impleadment of an additional party may be asked for or may be considered by the court to be necessary for a proper and complete adjudication of the matters in controversy in such a suit and such impleadment would not involve the reopening of matters already finally settled by the preliminary decree. The correct legal position in our opinion is that while the passing of a preliminary decree in a suit for partition or redemption will not ipso facto operate as a total bar against the addition of any new parties to the action, the impleadment of additional parties subsequent to the passing of the preliminary decree is permissible only if none of the questions already settled by the preliminary decree would have to be reopened by the court as a consequence of such impleadment ; the addition of parties can be allowed at that stage only on condition that the further proceedings to be taken in the suit will be only on the basis of the preliminary decree already passed, and none of the questions settled by the preliminary decree will be allowed to be reagitated on the ground that the person newly impleaded was not before the court at the time of the passing of the preliminary decree. As to whether or not the impleadment of a new party should be allowed on the aforesaid condition in the circumstances of a particular case will have to be considered by the court on the merits of each case as and when the said question arises. No party should be impleaded against his will if that would involve his being subjected to the terms of a preliminary decree which was passed without his being on the party array, particularly when there are pleas which the said party could have put forward in respect of the matters considered and settled by the preliminary decree.
5. We do not, therefore, find it possible to agree wholly with the principle laid down in either of the two sets of rulings cited before us, as, in our opinion, it would not be right either to completely rule out the addition of parties after the passing of a preliminary decree or to recognise an unrestricted power to allow the impleadment of additional parties even after the preliminary decree so as to rip open matters already decided and settled by the preliminary decree. As we have already indicated the correct view seems to us to be that the power of the court to implead additional parties at a stage subsequent to the passing of a preliminary decree in an action for partition or redemption must be limited to cases where such impleadment of additional parties would not involve the ripping open of any of the matters already dealt with in the preliminary decree and the case can be proceeded with the additional parties on record on the basis of the determination already given in the preliminary decree."
18. The case law which has been relied upon by learned Advocate Mr.H M Parikh appearing for the newly added parties also supports the above referred principle of law. Mr.Parikh has relied upon judgment of Karnataka High Court in the case of Smt. Aswathamma Vs. Vijayaraghava reported in AIR 1999 KARNATAKA 21. In paragraph Nos.20, 21 and 22 it is held as under:
"20.
The Division Bench of the Andhra Pradesh High Court in the case of Ramaderappala Narasinga Rao v. Chunduru Sarada, reported in AIR 1976 Andhra Pradesh 226, has also dealt with this question and relied upon the decision of the Allahabad High Court referred to above and the other decisions. The Division Bench observes at page 231 as under :
"............A final decree specifying the properties falling to her share (and the share of the first defendant) had yet to be passed. We are of the opinion that since the plaintiff asked for an undivided half share and since the preliminary decree directed such a partition, the mere fact that the parties effected the division by mutual settlement does not mean that the preliminary decree passed on 28-1-1971 itself becomes a final decree. In any event, the parties themselves and the Court, all acted on the footing that it was only a preliminary decree and actually a final decree was applied for and passed later. On these facts, it must be held that on 6-4-1971, when the executive officer filed the said applications, the suit was still pending. The suit will be disposed of only with the passing of the final decree which was not done by that date and hence a petition under Order 1, Rule 10, CPC was maintainable. There is ample authority for the said proposition vide Krishna Aiyar v. Subrahmania Aiyar, AIR 1924 Mad 648; Rameshwar v. Thakur Jeban, AIR 1937 Pat 49, Syed Mohiddin v. Abdul Rahim, (1964) 1 An WR 131 : AIR 1964 Andh Pra 260, Dinanath Kumar v. Nishikanta Kumar, AIR 1952 Cal 102; Shagun Chand v. Data Ram, AIR 1927 All 465 and Ollus Bank v. L. F. Bank, AIR 1954 Trav Co.
399."
Their Lordships further observed at page 231 :-
".............Still the inherent powers of the Court recognised by S. 151, CPC are wide enough, in our opinion, to set aside the said preliminary decree. It has been held by the Supreme Court in D. Manohar Lal v. Hiralal, (AIR 1962 SC 527) that the provisions of the Code do not control the inherent power by virtue of its duty to do justice to the party before it..........."
So in order to do justice to the parties and to avoid multiplicity of legal proceedings and abuse of process of Court, the Court may exercise inherent power to modify the preliminary decree.
21. The Division Bench of the Calcutta High Court in Dinanath Kumar v. Nishikanta Kumar, AIR 1952 Calcutta 102 also expressed the view and held that though preliminary decree having been passed, but suit is still pending, there is no legal impediment in appropriate cases to permit impleadment of the party at that stage, to avoid multiplicity of proceedings and undue harassment to the party as well as to finally adjudicate and settle the question involved in the case. The material observations of Their Lordships read as under :
"..............We are impressed by the contention put forward by the learned Advocate for the petitioner before us viz. Dinanath, that if we permit Dinanath to intervene for adjudication of the question as to whether his son Nishikanta was merely benamdar for him, that will save multiplicity of proceedings and obviate much needless harassment to the mortgagors who are not challenging the right of Dinanath. Even though a preliminary decree has been passed in the mortgage suit, the suit is still pending and there is no legal bar in appropriate circumstances to Dinanath being permitted to come in even at this stage. It is obvious that the father and the son have fallen out for some reasons and if by refusing the prayer of Dinanath under O. 1, R. 10, we drive the parties to further litigation, the mortgagors will be put to much unnecessary harassment for no fault of theirs. We feel that in the circumstances of the present case Dinanath's presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit............"
22. Thus it appears to me that the stage in the suit is not closed till the final decree is passed. The preliminary decree no doubt determines the share, but with the preliminary decree the shares have been determined without hearing this person whose presence was necessary and whose impleadment was necessary, no finality could be attached to the decree, in the sense that it was binding on the person, namely the applicant who was not impleaded in the suit, before the passing of the decree. So it is always open to the applicant to agitate that question and say the decree is not binding and partition is null and void, to get rid of all that resulting in harassment to parties by multiplicity of legal proceedings, in my view the trial Court when it opined the applicant (respondent) should be impleaded and that he should be heard before any final decree is passed, it did not commit any error, because for it records no final decision in his favour as regard his right and claim on merits, if the applicant was adopted son or not or any Will was executed in his favour. All these questions have to be settled, before final decree could be passed. But if on trial, it is found that respondent (applicant) is the adopted son of defendant No. 1 (original) and Will was executed by first defendant in favour of the applicant, then question may arise to be determined whether plaintiff and other defendants were entitled to any share in the property in suit or not, if so to what extent. When the Court keeping in view these circumstances, points to be determined finally, has held that for final determination of all the questions involved, applicant is a necessary and proper party and to avoid multiplicity of proceedings impleadment is necessary and that it should exercise its discretionary jurisdiction to make impleadment, directing the parties to be added, to avoid multiplicity of legal proceedings, the order and decision is one within its jurisdiction and in my opinion it is not open to interference in revision under S. 115 of the Code."
19. I may also refer to one ruling of the Supreme Court in the case of Bhupinder Kumar Vs. Angrej Singh reported in (2009) 8 SCC 766. In this matter the Supreme Court was dealing with the power of the Court available under Section 28 of the Specific Relief Act, 1963 to extend the time for compliance with the decree or grant an order of rescission of the agreement.
Supreme Court took the view that when the Court passes the decree for specific performance, the contract between the parties is not extinguished. The Court does not loose its jurisdiction after the grant of the decree for specific performance nor it becomes functus officio.
Supreme Court took the view that the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the grant of such decree and the Court would retain control over the entire matter even after the decree. Supreme Court ultimately held that the Court has the power and discretion to extend the time in favour of decree holder to pay the amount or to perform the conditions mentioned in the decree for specific performance. Important paragraphs of this judgment are from No.19m 21 and 22 which are reproduced herein below.
"19. It is clear that the decree is in the nature of preliminary decree and the suit would continue and be under the control of the court till either party moves for passing the final decree. It is also clear that though the court has the power to extend time and it is the duty of the court to apply the principle of equity to both the parties.
21. It is clear that Section 28 gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial court which passes the decree of specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree.
22. Sub-section (1) of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance not it becomes functus officio. On the other hand, Section 28 gives power to the court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an application under Section 28 (1) of the Act, the court has to see all the attending circumstances including the conduct of the parties."
20. Thus the position of law in my view is very clear.
Without reagitating any of the issues as decided by the Court below in the suit a party can be impleaded before the final decree is drawn. In the present case, there is no challenge so far as the preliminary decree is concerned determining the share of late Ishakbhai. Even the newly added parties i.e. two daughters from the first marriage of Ishakbhai has no dispute so far as 7/32 share of Ishakbhai as determined is concerned. What is in dispute is perhaps the so-called gift made by Ishakbhai in favour of the applicant herein so far as his share is concerned. The case of the two daughters is that they have also a right in the estate of their late father and from 7/32 share of their father they have right alongwith the applicant herein. In short, the two newly impleaded parties wants the Court to divide 7/32 share of late Ishakbhai in three equal proportions. Again the question at this stage which arises is as to what will be the effect of the gift said to have been made by late Ishakbhai in favour of applicant. Admittedly in the suit this issue has not been decided except the fact that the confirmation of the oral gift in the form of an affidavit affirmed by late Ishakbhai has been on record which has been accepted. In this set of facts and circumstances it will be for the trial Court now to decide as to whether the two newly impleaded parties i.e. the two daughters of late Ishakbhai from his first marriage can legitimately claim to divide Ishakbhai's 7/32 share in three equal proportion or not. I have noticed that learned Judge while allowing the application has taken care to see that no final rights of the impleaded parties are determined while deciding their application for being impleaded as parties in the suit.
21. I am of the view that before the final decree is drawn it will be open for the Court below to take into consideration the plea of the newly impleaded parties insofar as their share is concerned. I have already made it clear that without going into the merits or demerits of the preliminary decree this is permissible. At the same time, it will also be open for the applicant herein to place reliance on her plea of oral gift confirmed by an affidavit of late Ishakbhai in this regard to establish that the newly impleaded parties and the claim in share from 7/32 share of late Ishakbhai. The Executing Court would be empowered to that extent in deciding this issue after due inquiry and after giving an opportunity to all the parties concerned. In taking this view I am fortified by a ruling of the Supreme Court in the case of Maddineni Koteswara Rao Vs. Maddineni Bhaskara Rao & Anr., reported in (2009) 13 scc 179.
The relevant paragraphs of the judgment are No.15, 16, 17 and 18 which are quoted as under:
"15. It is competent for the court to examine the validity of the transfers, testate or intestate successions in the final decree proceedings, of which examination had not been done before the passing of the preliminary decree, to take into consideration the changes occurring on account of death of a party or transfer made by him. Therefore, the High Court and the trial court were justified in taking into account the Will of the deceased father while passing the final decree in the partition suit. The High Court placed reliance on a decision of this Court in Phoolchand v Gopal Lal.
16. The High Court further held that alteration of the preliminary decree would occur only if the extent of shares allotted to each parties or the items identified for partition, were altered. No such alteration had taken place in the present case. A mere adjustment of the shares of the parties does not bring about any alteration in the preliminary decree. Accordingly, the High Court had refused to interfere with the order of the trial court in revision. 8. Feeling aggrieved, the appellant filed a special leave petition, which on grant of leave, was heard in the presence of the learned counsel for the parties.
17. The only question that needs to be decided in this appeal is whether the High Court as well as the trial court were justified in allotting two shares in favour of the respondent on the basis of the Will executed by the deceased father of the parties and whether the genuineness of the Will could be decided by the Court in a suit for partition or not or by a separate suit.
18. It is well settled that a suit for partition stands disposed of only with the passing of the final decree. It is equally settled that "in a partition suit, the court has the 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."
The share of the deceased would devolve upon other parties to a suit or even a third party, depending upon the nature of the succession or transfer, as the case may be. The validity of such succession, whether testate or intestate, or transfer, can certainly be considered at the stage of final decree proceedings."
22. I may also refer to the judgment of the Supreme Court in the case of Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna & Ors. reported in (2009) 9 SCC 689.
In this case Supreme Court was dealing with an issue as to whether the provisions of the Limitation Act are inapplicable to an application for drawing up a final decree. In the case before the Supreme Court an application was preferred for drawing up a final decree. The said application was opposed on the ground that it was barred by limitation. It was argued that the final decree proceedings being barred by limitation should be dropped. The said application was dismissed by the trial Court holding that once the right / share of the plaintiff had been finally determined by a preliminary decree, there is no limitation for an application for effecting the actual partition / division in accordance with the preliminary decree as it should be considered to be an application made in a pending suit.
Supreme Court took into consideration R.18 of O.20 of Code of Civil Procedure as well as Section 54 of the Code of Civil Procedure dealing with the partition as estate or separation of share and held as under:
"The function of making a partition or separation according to the rights declared by the preliminary decree, (in regard to non-agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared."
23. What can be deduced once again from the above referred judgment of the Supreme Court is that the first stage in a suit for partition is declaration of rights or shares and the preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition that is division by metes and bounds.
24. I need to meet with one another contention of the learned Counsel for the applicant with regard to impleading the newly added parties as co-plaintiffs. Learned Counsel vehemently submitted that the Court below at the most could have permitted them to be joined as defendants but in any case Court could not have passed an order permitting them to be joined as co-plaintiffs. I do not find any merit or substance in this contention for the simple reason that it is a settled proposition of law that in a partition suit each plaintiff is defendant and defendant, the plaintiff. Other legitimate sharer can claim partition and allotment of his share by paying Court fees. The judgment of learned Single Judge of this Court in the case of Mahechchha Corporation (supra) also does not lay down an absolute proposition that a third party can be joined only as a defendant and only as a co-plaintiff. In Mahechchha Corporation (supra), it has been clarified that a third party can be joined as a co-plaintiff if the interests of the plaintiff on record and such third parties are common interests and those third parties also claim the same relief against the defendants. In the present case the newly impleaded parties are not disputing the preliminary decree and if they would have been there in the suit from the beginning their relief against the defendants would also have been common alongwith the applicant herein. The only dispute is with regard to right of the newly added parties in the share of late Ishakbhai which has been determined by the Court.
25. In the above view of the matter, I hold that no error is committed by the Court below in impleading respondents No.10 and 11 in the suit after passing of the preliminary decree. I clarify that without reopening any of the questions already settled by the preliminary decree it will be open for the newly impleaded party respondents Nos.10 and 11 to make good their case that they are the daughters of late Ishakbhai from the first marriage of Ishakbhai and are entitled to claim share from the estate of late Ishakbhai i.e. 7/32 share of late Ishakbhai alongwith the applicant herein. I clarify that to that extent the Court below will hear both the parties i.e. applicant herein as well as respondents No.10 and 11 and decide whether the newly impleaded parties are entitled to claim share from the determined share of late Ishakbhai. It will also be open for the applicant herein to rely on the oral gift as well as the declaration made before the Executive Magistrate by late Ishakbhai on 27/08/1990 which is produced in the suit at Exh.74. To that extent the Court below will determine the rights of the respective parties and after determining the same shall proceed to draw the final decree.
26. I clarify that I have not gone into the issue as to whether the newly impleaded parties can claim share from the estate of late Ishakbhai being daughters from first marriage of Ishakbhai. I have not expressed any opinion in this regard and it will be for the Court below to decide the same in accordance with law. All I have decided in this present application is the main issue as to whether the Court below could have permitted respondents No.10 and 11 to be impleaded as co-plaintiffs in the suit after passing of the preliminary decree.
27. The concerned trial Court is hereby directed to hear the petitioner and respondents Nos.10 and 11 on the issue in question and determine the rights of the respective parties as explained above within a period of three months from today without fail.
28. In the above view of the matter, the application is hereby rejected with no order as to costs. Rule stands discharged. Interim-relief stands vacated forthwith.
(J B PARDIWALA, J.) sompura Top