PREM Vs. NANJE GOWDA

JUDGEMENT

(1.) THIS Civil Revision Petition is filed by defendant No. 6 aggrieved of the order passed by the Civil Judge, Sr. Dn. and jmfc, Pandavapura (in short called as the trial Court) on I. A. No. V in FDP No. 5/ 1999 dated 10-7-2000 and for setting aside the same.

(2.) THE brief facts are narrated in this order to appreciate the rival contentions urged by the parties to find out as to whether the impugned order passed by the trial Court suffers from error in law, which warrants interference by this Court in O. S. No. 425/ 1989 filed by the plaintiff for partition and separate possession of the suit schedule properties. On the basis of the respective claim and the counter claim of the parties, the trial Court determined the rights of the parties which existed as on the date and passed preliminary decree in terms of S. 2 (2)r/w Order 20 Rule 18 sub-rule (2) of the code of Civil Procedure. Against the said preliminary decree, the defendants filed R. A. No. 69/1992 under S. 96 of the Code of Civil procedure. The First Appellate Court, formulated the points for its consideration, on the basis of the rival contentions urged by the parties and it has answered the points against the defendants and dismissed the appeal on 20-3-1998 by confirming the Preliminary Decree, against which the defendants. filed Regular Second Appeal No. 624/ 1998 before this Court. Since, the said second appeal was barred by limitation and therefore, an application was filed by the appellants therein seeking for condonation of delay in filing the said appeal. This court rejected the application for condonation of delay by its order dated 1-10-1999 and therefore, the preliminary decree passed in o. S. No. 425/1989 by the trial Court became final. Thereafter, the plaintiffs initiated proceedings for drawing up the final decree after complying with legal requirements as required under Order 20, Rule 18 (1) r/w S. 54 of the Code of Civil Procedure. At that stage, Defendant No. 6 has filed an application under Ss. 151, 152 and 153 CPC requesting the trial Court to amend the preliminary decree passed in the original suit and further prayed to declare that she is entitled to 2/7th share in the suit properties instead of l/28th share. The said application was seriously opposed by the plaintiff inter alia contending that the application is not maintainable in law stating that she was married long back prior to Hindu succession (Karnataka Amendment) Act, 1990 came into force with effect from 30-7-1994, and further stated that she had not pleaded for her enhanced share in the first appeal and second appeal proceedings and therefore, she is estopped from claiming her right under S. 6-A of the Act and for re-allotment of her share by way of correcting and amending the preliminary decree passed by the trial Court. The learned trial Judge, on the basis of the rival contentions urged by the learned Counsel for the parties has formulated the points for his consideration as to whether defendant No. 6 is entitled for enhanced share in the Joint family properties in view of the Hindu Succession (Karnataka Amendment) Act of 1990. The learned counsel appearing for the parties addressed arguments making their respective submissions on the aforesaid points. The trial Court after referring to various undisputed facts and considering the amended provision of S. 6-A of the Act referred to supra, which provision came into force with effect from 28-7-1994 and also referred to S. 322, definition of partition from mullas Hindu Law, Seventeenth Edition by satyajeet-A-Desai at Page 515, has recorded its findings with its cogent valid reasons and answered the points against defendant No. 6 and rejected the application by passing the impugned order,

(3.) THE correctness of the impugned order is questioned in this revision petition b the 6th defendant placing reliance upon the provisions of S. 6a of the Hindu Succession act (Karnataka Amendment) Act, 1990 and the decision of the Supreme Court reported in AIR 1967 SC 1470; AIR 1977 Kant 60; air 1996 Kant 183; AIR 1988 Orissa 11; air 1989 CAL 159; AIR 1990 Andh Pra 263; air 1952 Rav-Co. 96 : AIR 1949 Madras 586 (FB); AIR 1955 Mysore 6 and also the decision of the Supreme Court reported in (1991)3 SCC 647 in support of the proposition that nothing in the C. P. C. 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 the partition suits, after preliminary decree is passed, if some parties die and further that subsequent to the preliminary decree in a suit for partition, there has been either enlargement or diminution of the shares of the parties by reason of succession or subsequent purchases or by assignments of interest by whatever cause, the court, before passing its final decree can and ought to go into the matter and grant a final decree in accordance with such subsequent devolutions to avoid. multiplicity of suits and give complete and appropriate relief to all the parties. Further, the learned counsel for 6th defendant placed reliance upon other judgments in support of the proposition that the determination of the rights of the parties and passing the preliminary decree in a suit for partition will not operate as resjudicata in terms of explanation (IV) of S. 11 of CPC, if before the partition is completed on the basis of Preliminary Decree by drawing a final decree. The reliance placed upon the Full Bench decision of Madras High Court by the learned counsel for 6th defendant, wherein the said Court after considering the provisions of Expln. IV to S. 11 of CPC, has held that, if the plaintiff acquires fresh cause of action during pendency of the suit, he is bound to rely on new right in pending suit and the subsequent suit on fresh cause of action and therefore it is not barred by resjudicata. The said Full Bench judgment of the Madras High Court has been reiterated by the Division Bench of the Travancore Cochin High Court in the decision reported in AIR 19,52 Trav. Co. 976 referred to supra. The learned counsel has also placed reliance upon the judgment of the Supreme Court reported in (1991)3 SCC 647 (S. Sai Reddy v. S. Narayana Reddy) wherein the analogous provisions of S. 29a of A. P. Amendment to Hindu Succession Act as that of S 6a of the Karnataka Amendment to Hindu succession Act, was considered by the Supreme Court in the above said ease at Karagraph 7 law has been succinctly laid down in that case by it holding that the preliminary decree passed by the trial Court after determining the rights existed On that date and declaring the shares of the parties do not bring about the final partition between them for binding the final decree on them an account of intervening events. Therefore, the learned counsel Sri V. K. Bhat submits that the findings recorded by the trial Court in the impugned order on I A. No. V is contrary to the law laid down by the Apex Court, this Court, Full Bench decision of the Madras High Court, Division Bench decision of the Travancore-Cochin High Court, Orissa high Court, Calcutta High Court and other high Courts as referred to supra and as such the impugned order is vitiated in law, therefore, he has sought for setting aside the same and prayed for allowing the petition.