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14. Learned advocate Mr. Joshi also relied upon the decision of Apex Court in case of Ganduri Koteshwaramma and another v. Chakiriyanadi and another reported in (2011) 9 Supreme Court Cases 788, wherein it is held that it is permissible to modify the preliminary decree having regard to the changed or supervening circumstances before passing of final decree even if no appeal is preferred against the preliminary decree. In facts of the said case, section 6 of the Hindu Succession Act, 1956 which provides for parity of rights in the ancestral property amongst male and female members of joint Hindu family on and from 9.9.2005 and accordingly, rights accrued to daughter in the property of joint Hindu family governed by the Mitakshara law by virtue of 2005 Amendment Act is absolute, except in circumstances provided in the said Act. Therefore, an application was made by the daughters to be joined as party after preliminary decree of partition was passed and final decree was yet to be passed. In such circumstances, the Apex Court held that a preliminary decree determines the rights and interests of the parties and suit for partition is not disposed of by passing of the preliminary decree and it is only when final decree is passed, the immovable property of joint Hindu Family is partitioned by metes and bounds. It was therefore, submitted that the Court below has erred in not properly appreciating the scope of Order XX Rule 18 of the Code as the Code creates no impediment for even more than one preliminary decree if after passing the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree.

Submissions on behalf of the respondents :

16. Learned Senior Advocate Mr. Jal Unwala assisted by learned advocate Ms. Tejal Vashi for the respondent nos. 1 and 2.1 to 2.5 submitted that the Court below has rightly rejected the application Exh.97 refusing to join the petitioners as party defendants in the pending Regular Civil Suit No. 161/2006 because once the preliminary decree is passed in a partition suit unless there is an agreement between the parties as to manner of division, final decree is required to be passed on the basis of report of the Court Commissioner for consequential partition by metes and bounds. It was therefore, submitted that when the preliminary decree of partition was passed by the Court in the year 1995 and has achieved finality and as the same is not challenged before any higher forum, the daughters or the petitioners who are legal heirs of the daughter of late Ratanji Bhana are not necessary and proper party. Learned Senior Advocate Mr. Unwala relied upon the decision of the Apex Court in case of Shub Karan Bubna alias Shub Karan Prasad Bubna v. Sita Saran Bubna and others reported in (2009) 9 Supreme Court Cases 689 to contend that once there is a decree of partition, the share of the plaintiffs is determined and the preliminary decree is drawn under Order XX Rule 18(2) of the Code, the consequential division by metes and bounds is considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations, combinations and alternatives of division referred to Collector or Commissioner under Rule 18(1) of Order XX of the Code and is the subject matter of final decree and therefore, the petitioners have rightly not been impleaded in the pending proceedings for drawing final decree.

22. On conjoint reading of the aforesaid provisions, as held by this Court in case of Kumari Bilkishben D/o. Decd. Ishakbhai A. Kadarbhai v. Huned Saifuddin and ors.(supra), there is no legal embargo against addition of any new party after a preliminary decree in the suit for partition has been passed because it is well settled that the suit for partition is disposed of only when the final decree is passed. In case of passing of preliminary decree of partition, the suit would continue under the control of the Court unless and until the final decree is passed. This Court in the aforesaid decision has also relied upon the decision of Division Bench of Kerala High Court in case of Neelkantha Pillai Ramchandran Nair v. Ayappan Pillai Kumara Pillai reported in AIR 1978 Kerala 152, in case of Smt. Aswathamma v. H.M. Vijayaraghava reported in AIR 1999 Karnataka 21 and in case of Bhupinder Kumar v. Angrej Singh reported in (2009) 8 SCC 766 and thereafter held as under :

128. The expression used in Explanation to Section 6(5) 'partition effected by a decree of a court' would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court ef- fects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, stat- utory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or car- ried out by a final decree of a court. In case partition, in fact, had been worked out finally into to as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not other- wise. A partition made by execution of deed duly registered under the Registra- tion Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provi- sions of Section 6(5) conferring rights on a daughter. There is a clear legis- lative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public docu- ment not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.