Question: What sort of a decree is passed in a partition suit? Find the answer only on Legal Bites. [What sort of a decree is passed in a partition suit?]  Answer A preliminary decree declares the rights or shares of the parties to the partition. Once the shares have been declared and a further inquiry still remains to… Read More »

Question: What sort of a decree is passed in a partition suit? Find the answer only on Legal Bites. [What sort of a decree is passed in a partition suit?] Answer A preliminary decree declares the rights or shares of the parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held, and pursuant to the...

Question: What sort of a decree is passed in a partition suit?

Find the answer only on Legal Bites. [What sort of a decree is passed in a partition suit?]

Answer

A preliminary decree declares the rights or shares of the parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held, and pursuant to the result of further inquiry a final decree shall be passed.

A decree may be both preliminary and final and that apart, a decree may be partly preliminary and partly final. What is executable is a final decree and not a preliminary decree unless and until the final decree is a part of the preliminary decree as held in Bimal Kumar v. Shakuntala Devi, AIR 2012 SC 1586.

In a suit for partition case before Orissa High Court in Goma Khan v. Haidar Khan, AIR 2014 Ori 68, the suit was decreed preliminarily specifying the share of the plaintiff and the defendant. The plaintiff thereafter claimed for re-determination of share at the stage of the final decree, on the basis of an alleged sale executed in the year 1933. It was held that if any deed of sale was executed, in 1933 then the same should have been brought to the notice of the Court in the plaint itself and after the lapse of seventy-six years, such a plea cannot be allowed to be taken by the plaintiff in the final decree proceedings.

In Rahim Mian v. Bibi Jaibunisha, AIR 2014 Jhar 17 after passing of the preliminary decree in a suit for partition and share in the property, no appeal was filed by the defendants against the said decree. So also, nothing was brought on record to show that any event took place during the interregnum, which requires an alteration in the share of parties. Thus, at the stage of preparation of the final decree, they are not entitled to raise any objection against the correctness of the preliminary decree.

The Hon’ble Supreme Court at least as regards partition suits has clarified the view in Phoolchand v. Gopal Lal, AIR 1967 SC 1470. The court has observed that there is nothing in the Code of Civil Procedure prohibiting the passing of more than one preliminary decree if circumstances so justify it. In some cases, it may even be necessary so to do, particularly in partition suits where after a preliminary decree has been passed, some parties die resulting in the shares of the other parties being augmented.

In such an event, the court can and indeed should pass a second preliminary decree correcting the shares. If there is a dispute in that regard, the order of the court deciding that dispute and altering the shares set out in the previously passed preliminary decree is a decree in itself that is subject to an appeal.


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Updated On 2022-04-13T08:30:04+05:30
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