GURDEEP SINGH AND OTHERS Vs. RANJIT SINGH

JUDGEMENT

(1.) A suit for partition brought through a preliminary decree is followed up by the plaintiff with an application for passing of final decree filed under Order 20 Rule 18 CPC. An objection has been taken by one of the defendants that the final decree cannot be passed without ascertaining the shares of the defendants. The court has made reference to the fact that the defendant preferred an appeal and the appeal was also dismissed. This is stated to be wrong. The court, while considering the application filed by the plaintiff, had appointed a Local Commissioner to give his report and set a date for submission of a report. It is this order that is brought in challenge before this court.

(2.) The contention of the petitioner who is one of the defendants in the suit for partition is that the final decree application that does not determine the rights of all parties cannot be passed without modification of the preliminary decree. The counsel also makes reference to judgment of Calcutta and Guwahati High Courts for the same effect. Misunderstanding that has come about in the mind of the petitioner is that a preliminary decree would not be capable of being escalated to a further stage in final decree unless the decree is modified for the benefit of each defendant. The principle canvassed is wrong. A preliminary decree is granted in favour of plaintiff for a share which he seeks for. In a partition suit, the parties, who have shares in the properties, are in the position of plaintiffs. It will be open for any person who has a share in the property to seek for a preliminary decree in his own favour.

(3.) I may illustrate the procedure for future guidance so that this type of misguided petition do not arise in this jurisdiction. If a suit for partition is filed by a daughter claiming a share of 1/4th share against her brothers and there are three brothers each one of them being entitled to 1/4th share, a decree passed for 1/4th share can be pressed for passing of final decree by the plaintiff seeking for allotment of 1/4th share. It is not necessary for the court to identify 1/4th share of each of the defendants for the only reason that the brothers may choose not to divide the properties and then may choose to remain joint with reference to their 3/4th share. In the alternative, anyone of the defendants, namely, the brothers may apply for grant of a preliminary decree of 1/4th share for each one of them and seek at the time of an application for passing of final decree that the division must be made not merely of the 1/4th share of the sister but a division should be made also for each of the shares of the brothers. The Local Commissioner would in such a situation be directed to make suggestion for division of the property in 4 moieties so that each one of the sharers gets a property that is allotable to his share. This is therefore wholly optional for any of the defendants to seek for modification of the preliminary decree already granted for 1/4th share to provide also for 1/4th share of each of the brothers or allow the 3/4th share of the remaining brothers to continue in an undivided status.