SIVALINGA PATHAR Vs. NARAYANI AMMAL

JUDGEMENT

(1.) THERE were three brothers, Sivalinga, Ekambara and Chocka -linga. The last died about 12 years ago. Ekambara died on the 16th July, 1940, issueless leaving him surviving his widow. Sivalinga was the survivor. After the death of her husband, Ekambara's widow filed O.S. No. 8 of 1944 in the Court of the Subordinate Judge of Kumbakonam against Sivalinga as the first defendant and Chockalinga's widow as the second defendant. She claimed inter alia a share in the properties other than agricultural lands by virtue of the provisions of the Hindu Women's Rights to Property Act, 1937. In his written statement, me first defendant while contesting the suit on other matters stated with reference to her claim to the division of houses and moveable properties that he had no objection to the partition of the divisible items comprised under those schedules and to the separate possession and enjoyment of a moiety of the said items by the plaintiff until her death. On the basis of this admission the plaintiff applied under Order XII, Rule 6 for a decree being passed in respect of A schedule properties and notice of the application was given. The first defendant's advocate appeared and stated that the first defendant had no objection to an interim decree for partition as prayed for, provided it was made on the understanding that it did not debar any re -allotment of the properties at the final decree stage if such a re -allotment was considered necessary or desirable in order to make provisions for discharge of family debts or payment of maintenance dues if such debts or maintenance claim are found to be really payable from the family properties. The Court passed, on the basis of the admissions contained in the written statement as well as on the representation made by the first defendant's advocate, an interim decree as prayed for on the application under Order XII, Rule 6. A commissioner was appointed in due course for the division of the items and ultimately an order was passed on the 14th October, 1944, in the following terms - -

(2.) A decree was also drawn up on the same date in accordance with this order.

(3.) THE question is whether on account of these considerations and in the circumstances of the case, it was open to the first defendant to amend his written statement so as to embody contentions which were directly opposite to what he had urged in his original written statement. Earned Counsel for the petitioner has raised two contentions in this connection. The first is that the decree passed in this case which is called the interim decree is neither in form nor in substance a decree within the meaning of Section 2(2) of the Civil Procedure Code and that it is not conclusive even so far as the Subordinate Judge is concerned as under the terms of the decree itself, it was open to the parties and to the Court to make further re -allotments. The second contention is that even if it is an interim decree, it is not in the nature of a preliminary decree as contemplated in Section 97 of the Civil Procedure Code and that consequently there is no bar to the petitioner raising the question of the validity of the so -called interim decree in an appeal against the decree that might ultimately be passed by the Court. He draws attention to Clause (2) of Order XX, Rule 18, to show that a decree of this kind could not properly be treated as a preliminary decree such as would fall within the ambit of Section 97. He argues that having regard to the language of Section 105, it would be open to him not to prefer an appeal against the interim decree but to wait until the final decree was passed and to object to this decree in a ground of objection raised in the memorandum of appeal to be filed therein.