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5. Reliefs and costs?

The evidence consisted of PW1 and Exts.A1 to A5 for plaintiff, and DW1 to DW3 and Exts.B1 to B3 for defendants.

7. With the impleadment of additional defendants 4 to 6 in the suit issue raised over nonjoinder of necessary parties became reduntant. Other issues 1, 2 and 4, all of them, were considered together, and, learned Sub Judge entered findings thereof that Ext.A1 partition deed executed by Udayar with his sons, plaintiff  and defendants 2 and 3, was invalid since additional fourth defendant, widow of Sankaly Udayar, (predeceased son of Udayar,) was not a party to such deed and also not provided with her share in the joint family properties divided. Properties described in the schedule filed by additional fourth defendant, all items covered by Ext.A1 partition deed, according to learned Sub Judge, are to be divided and allotted to the parties-members of the joint family. Ext.B3 will executed by Udayar by which he made bequests over the properties covered by 'A' schedule in Ext.A1 partition deed was held to be valid, but, limited to the extent of his share in the joint family properties. On such reasoning learned Sub Judge held that the 1/5th share of Udayar in the properties i.e 60/300 shares would devolve upon his legatees under Ext.B3 will (defendants 2, 3 and 6), each of them getting 20/60 out of 300 in the joint family properties. Taking into account the death of first defendant pending suit it was  held that her shares would devolve on her legal heirs, namely, plaintiff, 2nd, 3rd and 5th defendants. On the above conclusions formed learned Sub Judge held that plaintiff will get 67.5/300 shares, second defendant 87.5/300 shares, and third defendant 87.5/300 shares and fourth defendant 30/300 shares, 5th defendant 7.5/300 shares and 6th defendant 20/300 shares in the properties described under the plaint and also items covered by the schedule produced by additional fourth defendant. A preliminary decree was passed allotting shares as indicated to the respective sharers stating that share of defendants 3, 5 and 6 are to be allotted on payment of requisite court fee in the final decree stage. That preliminary decree is challenged in this appeal by the second defendant.

13. Learned Sub Judge in the present case accepting the contention raised by additional fourth defendant that all properties covered by Ext.A1 are also available for partition and acting upon the schedule of such properties filed by that defendant has passed a preliminary decree declaring the shares of parties over such items directing division and allotment of such properties to the parties. A schedule with a petition describing some more properties not included in plaint was filed by the additional fourth defendant after filing her written statement. That does not form part of the pleadings of parties. Though learned Sub Judge has granted a preliminary decree over those properties decree drafted by the court below is confined to plaint schedule properties alone. When the plaint has not been amended including the items covered by the schedule filed by additional fourth defendant and no counterclaim by defendants in a suit for partition for inclusion of other items which are stated to have been omitted for division is possible, decree can be only in  respect of items described in the plaint schedule. Where subject matter of a suit is an immovable property mandatory prescription is that the plaint should contain description of that property with all necessary particulars for its identification. That is not an empty formality. Description of the property given in the plaint has to be entered in the suit register maintained by court which has to be kept as permanent record. A decree passed in a suit involving immovable property, where it is the subject matter, invariably should contain description of that property as described in the plaint schedule. Without taking note of the above safeguards insulated under the Code of Civil Procedure and rules prescribed under the Civil Rules of Practice, and also the incompetency of defendant in a suit for partition to get a decree for division of properties not included in the plaint without including them by amendment of plaint, other than contending that the suit is  bad for partial partition, if that is so, the court below has passed a preliminary decree directing division of items included in the schedule filed by additional fourth defendant, all items covered by Ext.A1, holding that such deed is void. Preliminary decree so passed is not only irregular but patently erroneous.