G.K. Misra, C.J.
1. The disputed property admittedly belonged to one Hari-charan Bose who died on 7-8-50. He had three sons : plaintiff, defendant No. 4 and defendant No. 5. On 10-10-46 he executed a will in respect of the disputed property in favour of defendant No. 4 and defendant No. 5. Thus he divested the plaintiff from inheritance under the Will. On 30-10-58 plaintiff filed T. S. No. 60 of 1958 for partition of his one-third interest in the disputed property. Defendants 4 and 5 filed a written statement on 25-2-59 claiming the entire property to themselves on the strength of the will.
On 12-9-60, defendants 4 and 5 filed an application for Probate of the will which was registered as O. S. No. 28 of 1961 in the Court of the District Judge, Cuttack. On 28-6-61 a preliminary decree for partition was passed in favour of the plaintiff in T. S. No. 60 of 1958 hi the court of the Subordinate Judge, Cut-tack. On 28-11-62 Probate of the Will wag granted after contest by the plaintiff. On 10-7-64, plaintiff filed an application in T. S. 60 of 1958 in the court of the Subordinate Judge for making final the preliminary decree for partition. On 12-2-65, defendants 4 and 5 filed an objection that plaintiff had no title in the disputed property after probate was granted and plaintiff's application for making the preliminary decree final should be rejected. This contention was negatived by the learned Subordinate Judge and it is against this order passed by him on 26-7-65 that this revision has been filed.
2. Mr. Sinha for the petitioners contends that the title of Haricharan Bose to the disputed property not being questioned, the probate conferred full title in the disputed property on the petitioners to the exclusion of the plaintiff (opposite party No. 1) and that the application for making the preliminary decree final should be dismissed and that though the probate was granted subsequent to the passing of the preliminary decree, the rights of the parties can be adjusted at the stage of the final decree, affecting ormodifying the preliminary decree. This contention has no substance as would be discussed hereunder.
3. Certain elementary propositions of law need be stated before the contention of Mr. Sinha is examined. Probate or Letters of Administration are not concerned with title to property but are only concerned with the due execution of the will see AIR 1962 SC 1471, Hem Nalini V. Isolyne Sarojbasini, In the present case however this question is academic inasmuch as the title of Haricharan Bose in the disputed property is admitted. After the grant of Probate on the basis that the will was genuine, defendants 4 and 5 'were entitled to the entire property, to the exclusion of the plaintiff if the Probate had been set up in defence In the partition suit prior to the passing of the preliminary decree for partition. Defendants 4 and 5 however did not obtain Probate of the will until the preliminary decree for partition was passed, though they had set up in defence ab sence of title in the plaintiff in the dis puted property on the basis of the will. The question for consideration is whether grant of Probate subsequent to the preliminary decree for partition becoming conclusive, could confer the same rights on defendants 4 and 5 which they could have got before the passing of the decree for partition if the Probate had been set up in defence. This position is fully answered in AIR 1966 Orissa 160, Baman Chandra v. Balaram where the significance of preliminary decree was construed. Therein this Court observed thus :
'The aforesaid three provisions newly Introduced for the first time in the present Code bring into bold relief an important change that in a preliminary decree certain rights are conclusively determined, and unless the preliminary decree of a court is assailed in appeal, the rights so determined become final and conclusive and cannot be questioned in the final decree. In that limited sense the preliminary decree itself is a final decree so far as those rights are concerned.'
Reference was also made to a passage in AIR 1963 SC 992. Venkata Reddy y. Petty Reddy wherein their Lordships laid down the following propositions :
'A preliminary decree passed, whether It is in a mortgage suit or partition suit, fs not a tentative decree but must in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees, a preliminary decree and a final decree, the decree which will be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The Legislature in its wis-dom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at, at the earlier stage, also has a finality attached to it.'
Doubtless, in certain cases even after the passing of the preliminary decree there may be some adjustments in the course of the final decree proceedings. Some of those circumstances were Indicated in the aforesaid Orissa decision. For instance, where a transferee is impleaded subsequent to the passing of the preliminary decree, or in case of death of parties whose rights were carved out in the preliminary decree, the interests of the transferee or the heirs of the deceased can be equally carved out. Such instances, however do not affect the funda mentals of the preliminary decree. In such cases, impleading of parties or carving out of interests is made on acceptance of the preliminary decree being correct and final in respect of all matters decided therein.
4. The position here Is completely otherwise. By the preliminary decree, the jural relationship amongst the parties inter se was finally decided and it was declared that the plaintiff had a one-third interest in the disputed property. If the; Probate of the will is allowed to vary the rights, a conclusion must be reached to : the effect that the plaintiff is not entitled to the property. This would affect the very basis of the preliminary decree and the rights carved out. The juristic theory underlying the reason why this cannot be done is that defendants 4 and 5 could have pressed into service the Probate if they had been vigilant in time. In fact, they had taken the defence under the will in the written statement. So, their claim on the strength of the will and the Probate subsequent to the preliminary decree is barred by the principle of res judicata. actual and constructive. It was open to defendants 4 and 5 to get the partition suit stayed, proceed with the Probate proceeding pending in the court of the District Judge and, after obtaining the Probate, to set it up in defence in the partition suit. That was the only course available to them. When they failed to do so, they abandoned their right based on the Probate The fact that the plaintiff contested the Probate proceeding and that in his presence Probate was granted, is wholly immaterial for the simple reason that by the time Probate was granted the rights of the parties on the basis of inheritance had already been worked out and the stage of setting up the Probate in defence had passed off.
5. Mr. Sinha places reliance on AIR 1958 Cal 472, Billa Basini v. Dulal Chan-dra. This case is clearly distinguishable. Though the rights of the parties had been crystallised and were conclusively determined by the preliminary decree to that case, an objection under Section 14(1) of the Hindu Succession Act as to the character of the property was set up during the final decree proceeding. Under that section, in any property possessed by a female Hindu, whether acquired before or after the commencement of the Hindu Succession Act, 1956. she acquires an absolute interest. The widow's share had been declared in the preliminary decree, she was in possession, and as such it was quite open to the Court to declare durine the final decree proceeding that the interest which she had was absolute, on the basis of Section 14(1) of the Hindu Succession Act.
6. On the aforesaid analysis the contention of Mr. Sinha is rejected.
7. The civil revision fails and is dismissed, but in the circumstances parties will bear their own costs throughout.