DAMODARAN Vs. KARTHIYAYANI

JUDGEMENT

(1.) This matter arises in final decree proceedings in a partition suit. Shares were allotted to all the parties. One of the sharer died after the passing of the preliminary decree. She had bequeathed her share in favour of another sharer. The question is whether the sharer who acquired undivided share is entitled to claim partition inclusive of the additional item acquired, in final decree proceedings itself or is he to be driven to another litigation for claiming partition of the same.

(2.) The facts in short are as follows: The revision-petitioner is the 2nd defendant in a suit for partition. The court below passed a preliminary decree, which was modified by the Appellate Court. As per the preliminary decree the first plaintiff is entitled to get 1/3 share and the first defendant and defendants 3 to 7 were entitled to get 1/3 share and the remaining 1/3 share was allotted to the 2nd defendant. The first plaintiff and 2nd defendant are brothers and defendants 3 to 7 are the widow and children of another brother Kumaran. First defendant Kochikka died after the passing of the preliminary decree. She had executed a settlement deed, whereby 1/18 share allotted to her was given to the revision petitioner. The plaintiffs filed final decree application for effecting partition of the property. A commission was taken out to effect partition by metes and bounds. The revision-petitioner filed IA 698 of 1986 praying that he may be given 7/18 shares inclusive of the property covered by the settlement deed executed by deceased first defendant. The plaintiffs and other defendants raised objection and contended that the revision petitioner should have filed a separate suit for partition. The learned Munsiff accepted that contention and dismissed IA 698 of 1986. This revision is directed against that order.

(3.) The court below was of the view that the settlement deed was executed after the passing of the final decree and that the court can only partition the property in accordance with the preliminary decree. The view taken by the Munsiff does not appear to be correct in view of S.47 of the Civil Procedure Code. S 47 CPC reads:-