PARASHURAM RAJARAM TIWARI Vs. HIRABAI RAJARAM TIWARI

JUDGEMENT

(1.) THIS appeal raises an interesting question under the Hindu Law which is as to the effect of a preliminary decree made in a suit for partition upon the status of the family being continued joint.

(2.) THE few facts, which are relevant to this question, are these : A Hindu family consisted of one Rajaram and his wife Hirabai. He has six sons; (1) Parashuram, (2) Balaram, (3) Ramakrishna, (4) Laxmikant, (5) Shamsundra and (6) Ashotharam who were respectively the plaintiff, defendant No. 3, defendant No. 4, defendant No. 5, defendant No. 6 and defendant No. 7 in suit No. 29 of 1947. In that year, Parshuram filed the aforesaid suit to recover, by partition, possession of his 1/8th share in the property described in the plaint. This suit resulted in a preliminary decree on the 29th November 1949, the terms of which were as follows :

(3.) UPON this appeal, a preliminary objection has been taken by Mr. Datar appearing for the respondents and the preliminary objection is that no appeal lies in this case. It is urged by him that no appeal would lie against the order of the 23rd March 1955 because the order of the 23rd March 1955 is an order made upon an application made by the plaintiff and, therefore, no appeal would lie. In other words, the contention is that the order of the 23rd March 1955 would not amount to a decree and, therefore, no appeal would lie. The expression 'decree' has been defined in Section 2 (2) of the Code of Civil Procedure and a 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Now, this was a suit for partition in which there was a preliminary decree and until there is a final decree in such a suit, the suit is pending and the application was made in a pending suit. By the application, the plaintiff claimed that by reason of his father's death, his share was augmented and the share which was 1/8th was increased to 1/7th. By the order of the 23rd March 1955, the learned Judge of the Court below refused this application and this would mean that the Court below refused to award the plaintiff his augmented share and, therefore, there was clearly a determination of his right which was refused. In our view, the order of 23rd March 1955 would amount, therefore, to a decree. The contention, therefore, so far as it relates to this aspect of the question must fail.