KESHO LAL KAPOOR Vs. VINOD KAPUR

JUDGEMENT

(1.) Admittedly applicants are the legal heirs of deceased whose properties are being sought to be partioned by way of instant suit. However , this application has been moved after preliminary decree has been passed on the representation that parties alone are legal heirs of deceased owner knowing it well that applicants are also legal heirs Concealment of this fact by both the parties has a significant effect over the validity of the prelimary decree as well as its executability.

(2.) This application is being resisted vehemently by Mr. Dutt, learned counsel for defendant on the premise that once preliminary decree is passed it cannot be interferred with vis-a-vis rights determined by the said decree and that preliminary decree in so far an it decideds the rights and shares of the parties is final unless set aside in appeal and cannot be re-agitated or re-opened by way of application under Order 1 Rule 10 CPC and has placed reliance upon Venkata Reddy & others Vs. Pethi Reddy AIR 1963 SC 992, AIR 1978 Kerala 152 and Mr.N.P.Nair Vs. A.Pillasi AIR 1971 SC 394.

(3.) The very fact that both the parties concealed the fact as to how many legal heirs were there shows the rights of the parties were neither effectively nor completely determined by way of preliminary decree and therefore the question of preliminary decree having acquired finality and is not liable to be reopened does not arise. Any decree obtained either through fraud or by concealment of materia1 fact that if taken into consideration would negate the decree itself cannot be deemed as final or unquestionable. Reliance on the aforesaid judgments is highly misplaced. Every case has to be decided and determined in the perspective and back drop of its own facts. Neither facts of two cases can be akin nor the ratio of an authority as rule of thumb. Such a decree is nothing but collusive in nature. No body can be allowed to usurp the rights of other legal heirs that too in the property by not coming with clean hands in the court. The resistence of the application by the defendant is like pointing an unclean finger.