(1) In this petition, the petitioners allege that subsequent to the disposal of A. S. NO. 563 of 1956 by this Court, the parties have compromised the matter and they pray for the passing of a revised preliminary decree in terms of the compromise arrived at by them.
(2) The prior facts, which will be necessary for a disposal of this petition, can be briefly put down. Petitioners 1 and 2 Subramania Iyer and Venkataramana Aiyar and the husband of the respondent Thangammal were brothers. The respondent 's husband died on 22-7-1952, without issue. On the allegation that one of the brothers Venkataramana Iyer was a congenitally deaf and dumb person, it was averred by Thangammal the plaintiff in the suit for partition our of which the appeal arose, that he would be disentitled to get any share. On this allegation the respondent Thangammal claimed partition and separate possession of one half share. The suit w dismissed. She filed an appeal which came up before a Bench of this court comprising of Balakrishna Aiyar and Jagadisan JJ. (A.S. No. 563 of 1956). This court held that the second petitioner Venkataramana Iyer would be entitled to a share and decreed the suit for partition and separate possession of one third are in favour of the plaintiff. There was petition for leave to appeal to the Supreme Court filed by the defendants in the suit. It was contented by the plaintiff. A report was called for whom the Subordinate Judge, Salem, regarding valuation. The learned Subordinate Judge sent a report on 6-9-1961 stating that the parties had compromised the matter. On 27-10-1961 a Bench of this court, to which one of us was a party, referred to the report to the learned Subordinate Judge that since the parties had compromised, it was not necessary to lead evidence regarding the value of the properties, for the purpose of granting leave to appeal to the Supreme Court and thereupon dismissed the petition for leave to appeal to the Supreme Court. Thereafter, the present petition has been filed for passing a revised preliminary decree in terms of the compromise, by the petitioners, who are the defendants in the suit and respondents in the appeal.
(3) In the counter affidavit to this application filed by the respondent plaintiff, two contentions were put forward. The first one was that the compromise was obtained by deceit and false representation and would not bind the respondent. The petition was also opposed on a second ground which is a legal one. It was alleged that his court in the appeal above mentioned has passed a preliminary decree end thereafter it was not open to the parties to apply to the Court to set aside the decree and substitute another preliminary decree in its place. This court, so far as the preliminary decree, is concerned, is functus officio and there is no proceeding before it. Even the consent of the parties would not give it jurisdiction to revise the preliminary decree already passed.
(4) In regard to the last mentioned plea, there is ample authority for the view that a partition action comes to an end, only when the final decree is passed, and until then, the partition action has to be deemed as pending. A Bench of the Calcutta High Court in Jotindra Mohan Tagore v. Bejoy Chand Mahatap, ILR 32 Cal 483 held that a suit for petition even when the report of the Commissioner is confirmed and a decree is directed to be drawn in accordance therewith, is a pending litigation until the court signs the final decree. A Full Bench of this court in Basavayya v. Guruvayya, : AIR1951Mad938 after referring to various authorities, observed at page 1181 of the report (Mad LJ) : (at p. 943 of AIR):
'A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree........In such a suit the court has not only to divide the common properties but has also to adjust the equities arising between the parties out of their relation to the common property, the property to be divided. The preliminary decree determines the moieties of the respective parties and thereby furnishes he basis upon which the division of the property has to be made....... Even after the passing of the preliminary decree, it is open tot he court to give appropriate directions regarding all or any of these matters with suo motu or in the application of the parties'.
Matters thus referred to in the above case are realisation of common outstanding, the discharge of common liabilities, the distribution of the profits of the properties, realised pending the suit, either in cash or by allotment of property f the requisite value, the grant of owelty, the allotment of lands on which improvements have been effected to the sharer who has improved them, the allotment of alienated lands to the share of the aileron and other similar matters. The Full Bench dealt with a case where the preliminary decree has silent regarding mesne profits, and the question arose whether a direction could be given for the purpose, after the passing of the preliminary decree. The Full Bench also observed:
'Ordinarily here would be one preliminary and final decree......... There is nothing in the Civil Procedure Code which can be contoured as a prohibition against the court, in a proper case, passing more than one preliminary decree and one final executable decree in a suit'.
The court also relied upon an observations of Sadasiva Aiyar J., in Ramaswami Iyer v. Subramania Iyer, 43 MLJ 406: AIR 1923 Mad 147
'In all adjudicaions which are intended to be final but only to be the determinations of some of the questions involved in a suit, there is and ought always to be implied the reservation of leave to all parties to apply for further directions and adjudicaions necessary for the complete trial and complete disposal of the litigation.'
In the present case, the preliminary decree directed partition and separate possession of one third share in favour of the plaintiff in the plaint B and C schedule properties. The terms of the alleged compromise can now be briefly referred to. The compromise provides that out of the properties to be divided, some particular items were to be given to defendants 1 and 2, and the plaintiff was to be given a sum of money inlieu thereof and the remaining properties were to be divided into three shares as provided in the preliminary decree. In substance, this compromise amounts only to a subsequent agreement between the parties regarding the manner in which the preliminary decree for division had to be worked out. For their own convenience they provided that in lieu of a particular item of property being brought into the hotchpot it shall be allotted to two of the shares with a money compensation in lieu thereof payable to the other sharer; some properties of mesne profits were to be given up; the rest of the properties were to be divided in the preliminary decree.
One can visualise a case where, after the passing of the preliminary decree, an item of properties lost for the purpose of divisions; say by the intervention of land acquisition proceedings by the Government, or loss by fire in the case of a house property or by diluvion in the case of cultivable land. To insist in such cases that he original preliminary decree alone shall be enforced and a final decree shall be passed only in accordance with that preliminary decree, will certainly not be conducive to the doing of justice between the parties. The court has necessarily to take into account the altered situation and if necessary pass a further preliminary adjusting the shares of he parties in the remaining properties. What is alleged to have happened in this case is a compromise, entered into after the passing of the preliminary decree, and which has a vital bearing upon the allotment of the properties among the shares. It is certainly upon to take the compromise into account and give directions in accordance with the compromise for the purpose of passing a final decree, the court cannot be considered as revising its earlier preliminary decree, taking into consideration subsequent developments. According to the decisions cited at the Bar and which have been referred to above the court is certainly entitled to adopt such a course.
(5) The decisions contra cited by the respondents' counsel, Kotagiri Venkatasubbamma Rao v. Vellanki Venkatrama Rao, ILR 24 Mad 1 , and Somasundaram Chetti v. Subramanian Chetti, 25 MLW 163: AIR 1926 PC 136 state the broad proposition that once a decree has been passed by a Court, it has no jurisdiction to alter it except in the case where an accidental slip or omission has arisen. They do not deal with partition suits. The principle laid down is a well recognised one, but it has no bearing on a partition suit, in which more than one preliminary decree can be passed. Such a suit must be deemed to be pending till the final decree is passed.
(6) We are therefore of the opinion that the court is competent to take into account the matters set out in the compromise, if the compromise is the court is entitled to embody it in a set of fresh directions for the purpose of passing a final decree, and the direction so issued should be construed as not an amendment to the preliminary decree already passed, but rather as a fresh preliminary decree, which it is open to the court, dealing with a partition suit to pass at any time till the stage of passing the final decree is over. Instead of ourselves dealing with this matter about the validity of the compromise and the necessity to pass a revised preliminary decree in accordance therewith, if its validity is established, we direct the trial court to deal with it. If it is satisfied on enquiry that here has been a valid compromise, it is open to the trial court, to issue appropriate directions in the form of a fresh preliminary decree. The petition is allowed as above. The petitioner will get the costs of this petition from the respondents.
7. Petition allowed.