Patna High Court
Rajeshwar Singh vs Rajendra Singh And Ors. on 11 December, 1991
Equivalent citations: AIR1992PAT125, 1992(40)BLJR630, AIR 1992 PATNA 125, 1992 BLJR 1 630, (1992) 1 PAT LJR 480, (1993) 1 CIVLJ 243, (1992) 2 BLJ 11
ORDER Nagendra Rai, J.
1. The plaintiff-petitioner has filed this revision application against the order dated 30th March, 1991, passed by the Subordinate Judge I, Palamau at Daltonganj, in Partition Suit No. 27 of 1973, by which he has rejected the prayer of the petitioner for allotting 1/12th share out of l/4th share of original defendant No. 8, Jasmati Kuer, who died in the year 1989, during the pendency of the final decree proceeding and further held that defendant No. 5 has acquired share of defendant No. 8 on the basis of deed of gift executed by defendant No. 8 in his favour and the allotment of her shares amongst the three sets of parties by the Batwara Commissioner was wrong case.
2. The facts leading to filing of the present revision application are that the petitioner along with others filed Partition Suit No. 27/ 73 claiming 1/4th share in the suit properties. According to the averments made in the plaint, share of the plaintiff in the suit land was l/4th, defendants Nos. 1 to 3 and 9 together have 1/4th share, defendants Nos. 5 to 7 together have 1/4th share and defendant No. 8 has 1/4th share.
3. Three sets of the written statements were filed in the said suit -- one on behalf of defendants Nos. 1 to 3, other on behalf of defendants Nos. 4 to 8 and the third one by the purchaser defendant No. 10, Defendants Nos. 4 to 8, in their written statement, asserted that defendant No. 8 has executed a deed of gift with regard to her share to defendant No. 5 on 17-5-1949.
4. The suit was decreed and preliminary decree was passed on contest against defendants Nos. 1 to 3 and 10 and ex parte decree against defendants Nos. 4 to 9 on 29-5-75. Defendant No. 5 (opp. party No. 1) filed an appeal against the aforesaid preliminary decree in this High Court (Ranchi Bench) being F.A. No 5/75(R), which was dismissed for default.
5. After passing of the preliminary decree steps were taken for preparation of final decree and the Pleader Commissioner was appointed to carve out the Takhtas according to the shares declared in the preliminary decree. In the year 1989, defendant No. 8 Jasmati Kuer, who was having 1/4th share in the suit properties died. After her death her share was allotted by the Pleader Commissioner to the three claimants in equal shares, namely, the plaintiff was given 1/12th share, defendants Nos. 1 to 3 and 9 were given 1/12th share and defendants Nos. 5 to 7 the remaining 1/12th share.
6. The defendant No. 5 objected to the same as the share of defendant No. 8 was allotted to three branches without any order of the court. Thereafter the plaintiff-petitioner filed an application on 28-1-1991 stating, inter alia, that defendant No. 8 died in the year 1989 and on her death her 1/4th share passed on to three sets of the parties. The plaintiff jointly got 1/12th share and defendants Nos. 1 to 3 jointly got l/12th share and defendants Nos. 5 to 7 got 1/12th share out of l/4th share. At the time of Takhtabandi by the Batwara Commissioner, appointed by the court, the fact regarding the death of defendant No. 8 was brought to the knowledge of the Commissioner and as no objection was raised from any side, the Batwara Commissioner carved out the Takhta increasing the share of different sets, as aforesaid. In the court, a technical objection was raised on behalf of defendant No. 5 that the Commissioner acted in the said manner without any order of the court and as such prayer was made to pass necessary order to the effect that on account of death of Jasmati Kuer (defendant No. 8) the share of different sets of the parties has become l/3rd, in place of l/4th and they are entitled to get their increased share.
7. A rejoinder was filed to the aforesaid petition by defendant No. 5 on 11-2-91 stating therein that the preliminary decree was made only of the share of the plaintiff and not of the defendants. He as well as defendant No. 8 along with other defendants filed joint written statement and it was clearly stated therein that defendant No. 8 gifted her share to Rajendra Singh (defendant No. 5) and defendant No. 8 did not claim any share in the joint family properties. As Jasmati Kuer has already gifted her share to defendant No. 5 at the time of her death, she has no share in the suit land and there is no question of inheritance of her share by any party. The plaintiff has earlier filed an application on 19-12-89 and has claimed that defendants Nos. 4 to 7 and the plaintiff are her heirs and legal representatives and plaintiffs have inherited 1/12th share out of the share of defendant No. 8, but the court did not pass any order in their favour, it only passed order for expunging the name of defendant No. 8. Thus, the plaintiffs* prayer was rejected by the aforesaid order. Accordingly, the claim of the plaintiffs is barred by the principle of res judicata. The plaintiffs are not entitled to 1/3rd share out of l/4th share of defendant No. 8, Jasmati Kuer.
8. The learned Subordinate Judge, after hearing the parties, as stated above, rejected the petition of the plaintiffs by the impugned order and held that defendant No. 5 alone is entitled to the share of defendant No. 8, hence this revision.
9. Learned counsel appearing on behalf of the petitioner contended that the court below has acted illegally in holding that defendant No. 5 alone is entitled to the share of defendant No. 8 ignoring the fact that the deed of gift was executed in the year 1949 and defendant No. 8, who was at the relevant time a limited owner according to the provision of the Hindu Women's Right to Property Act, 1937, she had no power to execute a deed of gift with regard to the share which devolved on her on the death of her husband and as such the deed itself was void and on that basis defendant No, 8 did not acquire any right. He further submitted that if the aforesaid deed is not taken into account then the plaintiff-petitioner will get l/12th share out of l/4th share and the remaining share will go to the defendants including defendant No. 5 and the court below without considering this aspect of the matter wrongly held that defendant No. 5 is entitled to the share of defendant No. 8.
10. Learned counsel appearing on behalf of the defendants opp. party, on the other hand submitted that the revision application is not maintainable as the dispute between the parties is as to who is entitled to the share of defendant No. 8 after her death and the court below has determined the aforesaid point and the decision of the court below amounts to a preliminary decree and the remedy of the petitioner is an appeal and not the revision.
11. Before considering the respective submissions advanced at the Bar, now, some of the facts, which are not in dispute, are to be stated. The plaintiff filed a suit for 1/4th share in the suit property and in the said suit defendants Nos. 4 to 8 filed a written statement and it was stated therein that defendant No. 8 has executed a deed of gift in favour of defendant No. 5. However, defendants Nos. 4 to 8 did not contest the suit. Defendant No. 8 died in the year 1989. If the deed of gift is not taken into consideration then her share would devolved in equal share on three branches, the plaintiff, defendants Nos. 1 to 3 and defendants Nos. 4 to 7. If the deed of gift is taken as valid deed of gift then the plaintiff will not get any share.
12. I will first decide the question as to whether this revision application is maintainable or not. If this question is decided against the plaintiff-petitioner in that case it will not be necessary to decide the other submissions advanced on behalf of the parties.
13. Order 22, Rule 18 of the Code of Civil Procedure provides, inter alia, with regard to a decree in a suit for partition. In a partition suit generally two decrees are passed (a) preliminary decree and (b) final decree. Preliminary decree is a step in the proceeding and the suit proceeds until passing of the final decree in the suit. Normally, preliminary decree could be reversed and modified by way of appeal, revision or any other method recognised by law. However, there is no provision under the Code of Civil Procedure which prohibits passing of more than one preliminary decree in a suit. After passing of the preliminary decree if some members of the family the or some births take place or one of the members relinquishes his share in favour of other co-sharers and there is dispute between the parties with regard to the same then the final decision on the question of dispute will amount to a preliminary decree. However, this can be done so long as no final decree has been passed by the Court. If final decree has been passed then the court cannot vary the preliminary decree, even if subsequent events necessitate the same.
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."
15. Thus, it must be held that after the preliminary decree and before passing of the final decree if the subsequent events necessitate augmentation, reduction or nullification of the allotment of shares made in the preliminary decree and there is dispute with regard to the same between the parties, then the order of the court deciding the dispute will amount to a preliminary decree and is appealable as such.
16. In view of the aforesaid legal position it must be held in the present case that the determination of the dispute between the parties on the point as to who is entitled to the share after the death of defendant No. 8 will amount to a preliminary decree and is appealable as such. As the impugned order is an appealable as a decree, the present revision application is not maintainable.
17. I would have permitted the petitioner to convert the present revision application into an appeal, but in view of the valuation given in the application the appeal would lie before the District Judge and as such I have no option but to hold that this revision application is not maintainable. In view of the aforesaid finding, it is not desirable to express any opinion on the merits of the case. However, it is made clear that if an appeal is filed along with the limitation petition, the court below will consider and dispose of the same in accordance with law, keeping in view the fact that the present, revision application filed by the petitioner was admitted by this Court and at the time of hearing it is being held that the revision application is not maintainable.
18. In the result, this application is dismissed as not maintainable.