B. Venkateshwara Bhat vs B. Subrahmanya Bhat and Others

A.N. Venugopal Gowda, J.—In O.S. No. 47/1976, a preliminary decree for partition and separate possession was passed by the Trial Judge on 30th January, 1980. FDP No. 4/2004 was filed to pass Final Decree and effect divisions. The respondent No. 9 therein/petitioner herein, filed I.A. No. 14, under Section 151 CPC to delete B Schedule Property from the Final Decree proceedings. The said application having been dismissed by an order dated 16.06.2015 vide Annexure A, this writ petition was filed.

Reasons for dismissal of I.A. 14 are, that the relief sought in the IA No. 14 amounts to reviewing the judgment and decree or amendment of preliminary decree and that Section 151 CPC cannot be invoked to grant relief, when there is specific provision under the law.

Heard learned advocates on both sides and perused the petition. Since the impugned order is liable to be set aside on a short ground, it is unnecessary to refer to rival contentions and record findings there on. It is for the Trial Judge to consider I.A. No. 14 in accordance with law and pass order.

In Prema Vs. Nanje Gowda and Others, , the respondent had filed a suit for partition and separate possession of his share in the joint family property. The suit was decreed by the Trial Court, which held the plaintiff and defendant No. 3 to be entitled to 2/7th share and other defendants to 1/28th share. An appeal jointly filed by defendants 1, 4, 5 and 6 was dismissed. Second appeal filed by defendants No. 1, 4 and 5 was also dismissed. Plaintiff instituted FDP. On being noticed by the Trial Court, the defendant No. 2, who had not even filed second appeal as against the said preliminary decree, affirmed in the first appeal, filed an application under Sections 151 , 152 and 153 CPC for amendment of the preliminary decree, to hold that she was entitled to higher share in the joint family property, having become a coparcener. The Trial Court dismissed the application and the challenge to the said order was negatived by this Court on the ground that the preliminary decree passed by the Trial Court had become final and that during the pendency of the second appeal filed by other defendants, there was not even a prayer for enhancement of her share in the joint family. Apex Court, while allowing the appeal has held as follows:-

"16. We may add that by virtue of the preliminary decree passed by the trial Court, which was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court ceased with the final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order."

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"19. In Phoolchand v. Gopal Lal (supra), this Court considered the question whether the preliminary decree passed in a partition suit is conclusive for all purposes and the Court before whom final decree proceedings are pending cannot take note the changes which may have occurred after passing of the preliminary decree. The facts of that case were that appellant-Phoolchand had filed a suit in 1937 for partition of his 1/5th share in the plaint schedule properties. Sohanlal (father of the appellant), Gopal Lal (brother of the appellant), Rajmal (minor adopted son of Gokalchand (deceased), who was another brother of the appellant) and Smt. Gulab Bai (mother of the appellant) impleaded as defendants along with two other persons. The suit was contested up to Mahkma Khas of the former State of Jaipur and a preliminary decree for partition was passed on 1.8.1942 specifying the shares of the appellant and four defendants. Before a final decree could be passed, Sohanlal and his wife Smt. Gulab Bai died. Gopal Lal claimed that his father Sohanlal had executed a Will in his favour on 2.6.1940 and bequeathed all his property to him. Appellant-Phoolchand challenged the genuineness of the Will. He also claimed that Smt. Gulab Bai had executed a sale deed dated 19.10.1947 in his favour, which was duly registered on 10.1.1948. Gopal Lal challenged the sale deed by contending that Gulab Bai had executed the sale deed because she was a limited owner of the share in the ancestral property. The trial Court held that the Will allegedly executed by Sohan Lal in favour of Gopal Lal had not been proved but the sale deed executed by Gulab Bai in favour of Phoolchand was valid. As a sequel to these findings, the trial Court redistributed the shares indicated in the preliminary decree. As a result, Phoolchand''s share was increased from one-fifth to one-half and Gopal Lal''s share was increased from one-fifth to one-fourth and that of Rajmal from one-fifth to one-fourth. The High Court allowed the appeal filed by Gopal Lal and held that Gulab Bai was not entitled to sell her share in favour of appellant-Phoolchand. The High Court also held that the Will executed by Sohan Lal in favour of Gopal Lal was genuine. One of the points considered by this Court was whether there could be more than one preliminary decree."

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"20. This Court referred to the judgments of various High Courts, which took the view that in a partition suit, the High Court has jurisdiction to amend the shares suitably even if the preliminary decree has been passed and then proceeded to observe:

"We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed....................................."

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"29. In our view, neither of the aforesaid three judgments can be read as laying down a proposition of law that in a partition suit, preliminary decree cannot be varied in the final decree proceedings despite amendment of the law governing the parties by which the discrimination practiced against unmarried daughter was removed and the statute was brought in conformity with Articles 14 and 15 of the Constitution. We are further of the view that the ratio of Phoolchand v. Gopal Lal (supra) and S. Sai Reddy v. S. Narayana Reddy (supra) has direct bearing on this case and the trial Court and the High Court committed serious error by dismissing the application filed by the appellant for grant of equal share in the suit property in terms of Section 6A of the Karnataka Act No. 23 of 1994."

In Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another, , it has been held that Order 20 Rule 18 creates no impediment for passing of even more than one preliminary decree, if after passing of the preliminary decree, events have taken place necessitating readjustment of the shares, as declared in the preliminary decree. It has been furthermore held that having regard to the changed or supervening circumstances, preliminary decree can be modified before passing of final decree, even if no appeal was preferred against the preliminary decree. It has been held that preliminary decree determines rights and interests of parties and that suit for partition is not disposed of by passing a preliminary decree and it is by a final decree that the Hindu Joint Family is partitioned by metes and bounds and that suit continues even after the preliminary decree is passed until final decree is passed.

In view of the above, the impugned order is bad in law and is liable to be set aside.

In the result, petition is allowed and the impugned order is set aside. I.A. No. 14 shall be reconsidered, keeping in view the observations made supra and in accordance with law. The Trial Court shall expedite the matter and pass orders on I.A. No. 14 within a period of 4 weeks from the next hearing date, and also finalise the final decree proceedings within a period of 4 months from the date order on I.A. No. 14 is passed.