In a partition suit, the proceedings continue until the final decree is passed; therefore, if circumstances arising after the preliminary decree require alteration of shares, the court has jurisdiction to pass a second preliminary decree, and such determination of altered shares constitutes a decree appealable under law. Paras: 158–159

advocatemmmohan

1. Civil Procedure Code, 1908 – Partition Suit – Multiple Preliminary Decrees – Permissibility

In a partition suit, if an event occurs after passing of the preliminary decree but before passing of the final decree, which necessitates alteration of shares of parties, the court is competent to pass another preliminary decree correcting the shares.

There is nothing in the Code of Civil Procedure prohibiting passing of more than one preliminary decree in a partition suit.

Paras: 158–159

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2. Partition Suit – Nature of Proceedings – Jurisdiction of Court until Final Decree

A partition suit does not terminate with the passing of a preliminary decree.
The suit continues until a final decree is passed, and the court retains jurisdiction to resolve disputes that arise after the preliminary decree.

Paras: 158–159

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3. Variation of Shares after Preliminary Decree – Whether Decree

Where the trial court varies the specification of shares after passing of the preliminary decree due to subsequent events, such an order amounts to a decree and is therefore appealable.

Paras: 158–159

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4. Appeal – Filing without Copy of Decree – Exceptional Circumstances

Although Order XLI Rule 1 CPC requires a copy of the decree to accompany the memorandum of appeal, the absence of such copy will not render the appeal incompetent when the appellant was unable to obtain the decree due to the failure of the trial court to prepare it.

Para: 157

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5. Hindu Law – Jain Widow – Nature of Estate in Ancestral Property

In the absence of a contrary custom, a Jain widow takes only a limited estate (widow's estate) in ancestral property inherited from her husband.

She does not possess absolute powers of alienation over ancestral property, though such absolute rights may exist in respect of self-acquired property where custom is proved.

Para: 160

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6. Will – Testamentary Power after Severance of Status

Where a partition suit has been filed and shares have been specified by a preliminary decree, there is severance of status in the joint family.

Consequently, a coparcener may validly bequeath his share in the joint family property by will.

Paras: 161–162

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Ratio Decidendi

In a partition suit, the proceedings continue until the final decree is passed; therefore, if circumstances arising after the preliminary decree require alteration of shares, the court has jurisdiction to pass a second preliminary decree, and such determination of altered shares constitutes a decree appealable under law.

Paras: 158–159