Introduction 

• This is a landmark judgment that laid down that in suits of partition more than one preliminary decree can be passed. 
• The judgment was delivered by 3 judges- Justice KN Wanchoo, Justice RS Bachawat and Justice V Ramaswami.   

Facts 

• Phoolchand (Appellant) had filed a suit in 1937 for partition of his one-fifth share in certain properties mentioned in the schedule of the plaint. 
• The defendants in the suit were Sohan Lal, father of the appellant, Gopal Lal, brother of the appellant, Rajmal, minor adopted son of Gokalchand (deceased). 
• The suit was fought right up to Privy Council of the former State of Jaipur and a preliminary decree for partition was passed specifying the shares of the appellant and four defendants. 
• Before the final decree was passed the father died and soon after the mother also died. 
• The respondent claimed the father’s share under a will executed by the father in his favor and the appellant claimed the mother’s share under a sale deed executed by her in his favor.  
• The appellant challenged the genuineness of the will. 
• The Trial Court passed an order redistributing the shares but did not prepare a fresh preliminary decree.   
• An appeal was filed to the High Court holding that: 
  • The appeal was maintainable without a copy of the decree. 
  • The varying of the share, by the trial Court, in the preliminary decree already passed by it was a decree in the circumstances of the present case, and the respondent could appeal from it. 
  • The mother was not entitled to sell her share and so the sale in favor of the appellant was invalid. 
  • The will in favor of the respondent was genuine 
• Hence, an appeal was filed in the Supreme Court.  

Issue Involved  

• Whether the order passed by the High Court upholding the order of Trial Court is valid?   

Observations 

• It is not disputed that in a partition suit the court has jurisdiction to amend the shares suitably even if the preliminary decree has been passed if some member of the family to whom an allotment was made in the preliminary decree dies thereafter. 
  • The Court held that the Trial Court was justified in amending the shares.  
• There is nothing in the Code of Civil Procedure 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 shares of other parties are thereby augmented. 
• Thus, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the Court. 
• So far as the partition suits are concerned, we have no doubt that if an event transpires after the passing of preliminary decree which necessitates a change in shares the court can and should do so. 
• However, the Court held that this must be confined to the partition suits, and we are not concerned with other kinds of suits in which preliminary and final decrees are passed. 
• The Court held that the will be executed by the father in favor of the respondent was genuine and the testator was competent to will away not only his self-acquired property but also share he got out of joint family property. 
• The Court therefore dismissed the appeals. 

Conclusion 

• The Court in this case believed that the will was executed and upheld the order of Trial Court passing the preliminary decree.