1. The sixth defendant has filed this civil revision petition against the order of the Additional District Munsif, Erode, dismissing his application (I.A. No. 3587 of 1969) filed under Sections 151, 152 and 153, C.P. Code, Praying to amend the preliminary decree granted in O.S. 853 of 1965, by giving him the right of partition and separate possession of his share.
2. On Rangammal instituted the suit against four defendants for partition and separate possession of her three-fourths share in the plaint-schedule property. On the 10th July 1969, a preliminary decree was passed directing division by metes and bounds of the plaint schedule property into 32 shares with reference to good and bad soil and directing allotment to the plaintiff of 24/32 share, and to the first defendant of 1/32 share. Subsequent to the preliminary decree, the plaintiff applied in I.A. No. 884 of 1968 for impleading three persons, of whom the petitioner was one, as defendants 6 to 8, on the ground that they were understood to have a share in the property forming the subject-matter of the preliminary decree. This petition was ordered by the court below. Summons was issued to the sixth defendant the petitioner, who field an answer claiming a share in the property but without specifying his share. He also affixed the requisite court-fee to his written statement. Subsequently he filed a memo specifying the exact share which he claimed in the plaint schedule property. When the petitioner was impleaded, final decree proceeding were pending before the court in pursuance of the original preliminary decree and a commission had been issued for division of the property in accordance therewith. In fact, the commissioner had already submitted his report and plea; but no final decree had yet been passed. It was in this context that the petitioner applied to the court below for amendment of the preliminary decree by declaring his share in the suit property.
This petition was opposed by the plaintiff-respondent it whose instance the sixth defendant had been impleaded as a party after the date of the preliminary party after the date of the preliminary decree. The learned District Munsif gave two reasons for dismissing the petition. The first was that the petitioner had not in his written statement mentioned the exact share to which he is entitled. Evidently he overlooked the fact that subsequent to the filing of the written statement the 6th defendant filed a Memo in which he specified the share to be declared. The second reason was that the petition had been filed belatedly for the purpose of dragging on the proceedings. This is not a valid reason either. Be it noted that the sixth defendant was not originally impleaded as a party to the suit before the grant of the preliminary decree. If the claim made by him was belated, it was due to reasons mostly beyond his control. It must not be forgotten that a partition suit must be deemed to be pending till a final decree is actually granted. It is the duty of the court in a partition suit to adjudicate upon the claims of all the parties who claim a share in the subject-matter of the suit. Otherwise it would lead to endless anomalies and complications. It has been repeatedly held by this court that in a partition action more than one preliminary decree can be granted: Vide Kasi v. Ramanatha Chettiar, : (1947)2MLJ523 . In Phoolchand v. Gopal Lal, : 3SCR153 , their Lordships of the Supreme Court have held as follows-
'We are of opinion that there is nothing in the Civil Procedure Code 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 the 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 the 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......... There is no prohibition in the C.P. Code against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the C.P.C. does not contemplate such a possibility. In any case if two views are possible--and obviously this is so because the High Courts have differed on the question--we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties........We therefore hold that in the circumstances of this case it was open to the court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before a final decree was passed.'
In this case, the sixth defendant, who was admittedly entitled to a share in the suit property, came upon the scene only after the date of the preliminary decree and was impleaded as a party at the instance of the plaintiff herself, who inconsistently enough opposed the application for amendment of the preliminary decree by declaring his share in the suit property. It may also be noted that the plaintiff admits that the sixth defendant has a share in the suit property, though there is dispute between the parties as to the exact quantum of the share he is entitled to. This is a question which the trial court ought to have adjudicated upon, after allowing both the parties to adduce evidence in that behalf. The trial court erred in refusing to do so. The omission of the preliminary decree to declare the sixth defendant's share can be rectified either by an amendment of the preliminary decree or by the grant of a second preliminary decree. The dismissal of the petitioner's application is therefore unjustified.
3. In the result, the order of the trial court is set aside and the matter remanded to the trial court for fresh disposal in accordance with law. The trial court is directed to expedite the disposal of the matter. The revision petition is allowed with costs.
4. Case remanded.