Sham Singh Kirpal Singh vs Lal Singh Kirpal Singh

Mehar Singh, J.—The question for consideration in this revision is whether after the preliminary decree in a partition suit, if the quantum of the shares of the co sharers increases by a subsequent event, the Court can take notice of that at the time of the final decree and make an adjustment accordingly? The question arises in these circumstances.

Lal Singh Respondent brought a suit for partition of the house in dispute, claiming one-half share in it, against his brother Sham Singh Petitioner. One Norata Singh made an application to be made a party in that suit, claiming to be the real brother of the Petitioner and the Respondent. The trial Court refused his prayer; and he then brought a suit for declaration that he was entitled to one-third share of the house. The two suits were'' consolidated by the trial Court.

In the final decision the trial Court came to the conclusion that Norata Singh was the real brother of the Petitioner and the Respondent and, therefore, it decreed the suit of Norata Singh and passed a preliminary decree in the partition suit of the Respondent declaring his share to be one-third of the house.

In the suit of Norata Singh Lal Singh Respondent filed an appeal and the appellate Court remanded the suit to the trial Court for readmission, after recasting the issues, whereafter the trial Court dismissed the suit of Norata Singh. The result of the dismissal of the suit of Norata Singh is obvious and that leaves two persons, that is, parties to this petition, with title to the house in dispute and it follows that each has one-half share in do. But it is obvious that the suit of Norata Singh was dismissed after the preliminary decree in the partition suit by the Respondent.

As the matters stood at the date of the preliminary decree and because of the fact that the suit of Norata Singh had been decreed for one-third share of the house, naturally enough the preliminary decree could only declare the share of the Respondent to be one-third in the house for the matter of partition But when, afterwards, the suit of Norata Singh failed, it is apparent that the share of rest was crystallized to be one-half of the house.

It is in these circumstances that the response; made an application to the trial Court for a decree for partition of the house claiming one are in the house. This application has been the Petitioner. The learned trial Judge and the application on the ground that, the final decree can only be in accordance with the preliminary decree and there can be no variation not consistent with the preliminary decree.

On appeal the learned District Judge, and I think rightly, has reversed the order of the learned trial Judge and has directed that final decree be passed taking into account the subsequent event crystallizing the shares of the two brothers in the house and dividing the house into two halves, one-half going to each brother.

The learned Counsel for the Petitioner contends that tin proceedings after "he preliminary decree and to obtain the final decree in a partition suit are In the nature of execution proceedings and therefore the final decree cannot be inconsistent with the preliminary decree. He relies upon SRI KANNAN RICE MILLS LTD. Vs. COMMISSIONER OF Income Tax, MADRAS., in which the learned Judges have held that the final decree proceedings under Order 20, Rule 12 and 18, only relate to matters which are provided in the preliminary decree as to partition, as to an account for mesne profits or as to an account for other properties, but do not relate to the decision of any substantial rights of the parties as to the title of properties which can only be decided in a regular suit.

But in that case the properties to which this observation of the learned Judges refers had been purchased benami in the name of third persons and without making those third persons parties to a suit, the title to those properties could not be settled. It is in those circumstances that the learned Judges made the observation. Obviously it has no application to the circumstances of the present case.

The argument on behalf of the Appellant that the proceedings after the preliminary decree in a partition suit are in nature of execution proceedings is not correct, and their Lordships of the Privy Council in AIR 1940 11 (Privy Council) have pointed out that in a partition suit in which preliminary decree has been passed,- the suit is still pending and the rights of parties who are added after the preliminary decree have to be adjusted at the time of the final decree.

If the stage of the final decree was the stage analogous to execution proceedings after the preliminary decree then no new parties could be brought in and their rights could not be adjusted at the time, of the final decree. This argument is without force. The case directly in point is Krishna Lal Jha v. Mandeswar Jha AIR 1921 Patna 296 (AIR V8) (C) in which after a preliminary decree in a partition suit one of the coparceners died resulting in increase of the shares of the other co-parceners to the preliminary decree.

In these circumstances the learned Judges were of the opinion that the rights of the parties ordinarily ought to be determined as at the date of the institution of the suit, suit for partition under Hindu Law is treated as an exception and, in order to save costs and to prevent multiplicity of proceedings, the Courts are entitled, and even bound, to take into consideration matters subsequent to the commencement of such a suit, And they held that the partition action does not come to an end with a preliminary decree, but continues till the final decree is made, and that the shares to be decreed to the parties must be those to which they are entitled on the date of the final decree.

With this I respectfully concur. So that in the present case, and it is not disputed that now only the Petitioner and the Respondent are entitled to the house and in equal shares, the rights of the parties to the shares in the house must be adjusted as crystallized the failure of the suit of Norata Singh after the preliminary decree and the application of the Respondent is a proper application And must be given effect to. The result of this is that the present petition fails and is dismissed with costs.