Shyama Devi v. Manju Shukla — 1991 DIGILAW 526 (RAJ)

TIBREWAL, J. — All the above three matters are connected and arise from a civil suit for partition No. 21/73, as such, they may be disposed of by a common order. (2). Civil Revision No. 747/90 (Smt. Shyama Devi & Others v/s. Manju Shukla & Others) and Civil Revision No. 831/90 (Tewari Ganga Prasad V/s Smt. Manju Sukla) are against the order dated 13.7.1990 of Additional District Judge No. 3 Jaipur City, Jaipur passed on the application dt. 6.5.1990 of non-petitioner Smt. Manju Shukla. (3). Civil Misc. Appeal No. 330/90 (Smt. Shyama Devi & Others) v/s Smt. Manju Shukla & others) is against the order dt. 13-7-1990 of Addl. District Judge No. 3, Jaipur City, Jaipur in Civil Misc. Case No. 48/90 on an application of respondent Smt. Manju Shukla under order 39 rule 1 and 2 C.P.C. (4). In order to appreciate the real dispute between the parties, it would be convenient to reproduce the pedigree of the parties as under :— PEDIGREE Pt. Purandar Ramj Shiv Prasanna Ramji Kalka Prasadji Gadadhar Prasadji Mohan Lalji Dhanpat Ram (Plaintiff) Bhagwandeenji Ganga Prasad(Def. No.1) Jamna Prasad(Def. No.2) Syryakumar @ Chunnilalji Yagyadutt Narain @ Munnilal (Def. No.5) Mahendra Kumar(Def. No.3) Narendra Kumar (Def. No.4) Sushila Devi(Def. No.6) Sarla Devi(Def. No.7) Urmila Devi (Def. No.8) Laxmi Devi (Def. No.9) (5). Dhanpat Ram S/o Mohan Lal filed a suit for partition in the court of Senior Civil Judge no. 1 Jaipur City, Jaipur on 6.10.1965. It is an admitted case between the parties that their common ancestor late Pt. Purandar Ram ji had been granted various properties in Jagir by the then Rulers of Jaipur & Rinwa. The description of those properties has been given in the plaint. 6. The case of the plaintiff is that the properties granted in Jagir to late Pt. Purandar Ramji constituted Joint Hindu Family Properties. From the income derived from the said properties other properties were added, details of which is given in schedule Ka attached with the plaint. The plaintiff claimed l/3rd share on the ground of his being the sole survivor of one of the three branches of the descendants of late Pt. Purandar Ramji namely, Kalka Prasad, Gadadhar Prasad and Mohan Lal. (7). The plaintiff claimed l/3rd share on the ground of his being the sole survivor of one of the three branches of the descendants of late Pt. Purandar Ramji namely, Kalka Prasad, Gadadhar Prasad and Mohan Lal. (7). From the pedigree, it is evident that the Ganga Prasad and Jamna Prasad are the descendants of the branch Kalka Prasad and thus they had jointly l/3rd share in the properties of late Pt. Purandar Ramji. (8). In Civil Revision No. 747/90 and in Civil Misc. Appeal No. 330/90, the petitioners/appellants are the wife, two sons and two daughters of Jamna Prasad. Jamna Prasad has died on 7.1.1987 after passing of the preliminary decree. Non- petitioners/respondents Smt. Manju Shukla and Smt. Indira Shukla are also the daughters of late Jamna Prasad. After the death of Jamna Prasad the above petitioners/appellants and Smt. Manju Shukhla and Smt. Indira Shukla were impleaded as parties in the suit. (9). The learned trial court passed a preliminary decree on 24th Jan., 1975 in the following terms:— The property shall be divided into three moieties of l/3rd each. (10). Against the aforesaid preliminary decree passed by the Additional District Judge No. 3, Jaipur City, Jaipur, Ganga Prasad and Jamna Prasad filed an appeal which was registered as Civil First Appeal No. 59/75. In the appeal, parties arrived at a compromise and a compromise petition was filed on 5.5.1980. On the said compromise Jamna Prasad had also signed as he was alive at that time. (11). It is worthwhile to mention here that the non-petitioners/respondents Smt. Manju Shukla daughter of Jamna Prasad moved an application in the High Court on June 28, 1982 for being impleaded as a party in the appeal. The said application was dismissed by the High Court on 22.3.1983. It appears that Smt. Manju Sukla again moved an application in the High Court on April 1, 1986 praying therein that the family settlement dt. 17.7.1981 filed before the High Court on 24th Sept. 1982 be not given any effect by this court as the same was forged and unlawful. She also prayed that the compromise arrived at between the parties on 5.5.1980 be also not given any effect and she may be impleaded as a respondent in view of the changed circumstances. 17.7.1981 filed before the High Court on 24th Sept. 1982 be not given any effect by this court as the same was forged and unlawful. She also prayed that the compromise arrived at between the parties on 5.5.1980 be also not given any effect and she may be impleaded as a respondent in view of the changed circumstances. This court rejected the said application of Smt. Manju with the following observations:— "The main thrust of the application and the arguments on behalf of the applicant Mrs. Manju Sukla is that the family settlement dated 17-7-1981 is fictious, orged and unlawful. But I do not propose to deal with this point because there is no application before this court for recording the said compromise arrived at between some of the parties to this appeal and others nor I am entitled to act on that family settlement dated 17.7.81." "Having given my thougful consideration to the contentions of the parties, I am of the view that the application filed by Smt. Manju Shukla on 1-4-86 deserves to be dismissed as her earlier application had already been dismissed on 22-3-83 by this court and no new circumstances or facts have emerged so as reconsider or review the earlier order dt. 22.3.83. All he authorities cited by the learned counsel for Smt. Manju Shukhla are quite distinguishable on facts and do not apply to the facts of the present case. The parties to the appeal have come to a compromise about the division of the property in their shares. Manju Shukla is not a co-sharer and has no right of partition. She will be entitled to her share which will fall in the share of her father Jamna Prasad and as and when the properties falling to the share of Jamna Prasad are partitioned or there is a family settlement, she can claim her right in accordance with law but I cannot in the present appeal demarcate any share of Smt. Manju Shukla in the properties which have fallen to the share of Jamna Prasad." (12). Subsequently, the appeal was decided by this court and the same was partly allowed and a decree was passed in terms of the compromise arrived at between the parties on 5.5.1980. The trial court was directed to issue necessary directions to the Commissioner in view of the compromise arrived at between the parties. (13). Subsequently, the appeal was decided by this court and the same was partly allowed and a decree was passed in terms of the compromise arrived at between the parties on 5.5.1980. The trial court was directed to issue necessary directions to the Commissioner in view of the compromise arrived at between the parties. (13). When the matter came before the trial court, an application was moved on behalf of the legal heirs of the plaintiff to the effect that the plaintiff Dhanpat, Defendant No. 2 Jamna Prasad and Mahendra Kumar Defendant No. 3 have died, as such, their legal heirs be brought on the record. This application was opposed by Ganga Prasad, brother of Jamna Prasad, on the ground that Jamna Prasad (deceased) had executed a Will during his life time in favour of his wife Smt. Shyama Devi on 7.3.1986, as such, the application to implead all the heirs of Jamna Prasad be rejected. This objection was overruled by the court and all the legal heirs of Jamna Prasad were impleaded as defendant including Smt. Manju Shukla and Smt. Indira Shukla vide order dt. 25.8.1986. (14). It may also be stated that Smt. Manju Shukla had also moved an application in the trial court on 3.10.1987 to be impleaded as a party in the suit after the death of Jamna Prasad. (15). On 6.5.1989 Smt. Manju Shukla filed a detailed application that in pursuance to the preliminary decree she contacted with the Commissioner asking him to divide her share out of l/3rd share of Jamna Prasad immovable and movable properties but she was asked by the Commissioner to obtain orders from the court, as such, the properties of late Jamna Prasad be ordered to be divided between 7 legal heirs and she be given/allotted her separate share. This application has been allowed by the trial court vide order dt. 13.7.1990. (16). Civil Revision No. 747/90 and Civil Revision No. 831/90 have been filed against the aforesaid order dt. 13.7.1990 passed on the application of Smt. Manju Shukla dt. 6.5.1989. (17). It appears that an application was also moved in the trial court on Sept. 24, 1990 by Smt. Shyama Devi and others (Petitioners in Civil Revision No. 747/90) with a prayer to cancel the order dt. 13.7.90 and decide the application of Smt. Manju Shukla dt. 6.5.89 after giving them an opportunity of hearing. 6.5.1989. (17). It appears that an application was also moved in the trial court on Sept. 24, 1990 by Smt. Shyama Devi and others (Petitioners in Civil Revision No. 747/90) with a prayer to cancel the order dt. 13.7.90 and decide the application of Smt. Manju Shukla dt. 6.5.89 after giving them an opportunity of hearing. It appears before the said application could be decided, the revision has been preferred by Smt. Shyama Devi and Others and the record of trial court has been summoned by this court. (18). Smt. Manju Shukla also moved an application under order 39 rule 1 & 2 C.P.C. in the trial court on 16-2-1990 with a prayer to restrain the non-applicants no. 1 to 6 in the said application from alienating or otherwise transferring any movable or immovable properties without her written consent. The learned trial court allowed this application on 13-7-1990 and restrained non-applicants from alienating or otherwise transferring the movable and immovable properties of Jamna Prasad in question. (19). Against this order, the Civil Misc. Appeal has been filed by Smt. Shyama Devi and Others. (20). The learned counsel for the parties have made lengthy arguments before me. The main contentions raised by Mr. N.K. Maloo and Mr. Mathur, learned counsel for the petitioners/appellants are as under :— (i) That no notice of the application dt. 6/5/1989 filed by Smt. Manju Shukla was given to the petitioners and they had no opportunity to file the reply and contest the said application. (ii) That the learned trial court had heard arguments only on the application for grant of temporary injunction under order 39 rule 1 and 2 C.P.C. and no arguments were heard by it on the application of Smt. Manju Shukla dt. 6/5/1989. (iii) That the preliminary decree has been finally passed by the High Court on the basis of compromise between the parties. Thereafter, no modification/variation could be made in the preliminary decree by the Addl. District Judge. (iv) That Smt. Manju Shukla had moved applications earlier for being impleaded as a party and they were dismissed with specific orders. Hence, Smt. Manju Shukla cannot re-agitate her so-called independent right/interest in the properties in question. Thereafter, no modification/variation could be made in the preliminary decree by the Addl. District Judge. (iv) That Smt. Manju Shukla had moved applications earlier for being impleaded as a party and they were dismissed with specific orders. Hence, Smt. Manju Shukla cannot re-agitate her so-called independent right/interest in the properties in question. (v) That Smt. Manju Shukla was impleaded as a party in the suit in the capacity of a legal heir of Jamna Prasad and in that capacity she cannot agitate her independent right to get partition of her share in the properties. In other words, Smt. Manju Shukla was not a defendant in the suit, as such, she cannot claim any partition of her share in the properties. (vi) That the trial court should have made an enquiry about the legal rights of the parties before allowing the application of Smt. Manju Shukla, especially when there was a family settlement, as well as a Will in favour of Smt. Shyama Devi petitioner. (vii) That serious questions of law and facts concerning the alleged family settlement and Will could be property investigated in a separate civil suit after the partition of the share of late Shri Jamna Prasad. (viii) That Smt. Manju Shukla had filed a civil suit for partition on her behalf, as well as, on behalf of Raju petitioner as a next friend and the said suit was dismissed, as such, she cannot re-agitate the same right. (21). On the other hand, Sh. Mehta, learned counsel for Smt. Manju Shukla has seriously refuted the above submissions made by the learned counsel for the petitioners/appellants. Mr. Mehta has further raised a legal objection about the maintainability of the revision. According to Mr. Mehta, there can be more than one preliminary decrees. He submits that the impugned order of the learned Additional District Judge is a preliminary decree and the same is appealable as such, the revision petition is not maintainable. (22). Learned counsel further submitted that otherwise also no question of jurisdiction is involved to interfere in the order of the trial court u/s 115 Cr.P.C. (23). I have given my anxious and careful consideration to the above submissions made by the learned counsel for the parties. I have also perused the verious order-sheets of the trial court and the various orders/ judgments including the impugned order. (24). I have given my anxious and careful consideration to the above submissions made by the learned counsel for the parties. I have also perused the verious order-sheets of the trial court and the various orders/ judgments including the impugned order. (24). The first and the foremost question arises for consideration is whether any modification and variation in the preliminary decree passed by the High Court in S.B. Civil First Appeal No. 59/73 vide judgment dt. Sept. 1, 1986 can be made, if so, whether such modification and variation can be made by the trial court. On this point, the argument of Mr. Maloo is two-fold. Firstly, the preliminary decree passed by the High Court is final and its finality cannot be disturbed on.the prayer of any party. Secondly, if the modification is permissible then the modification can be made only by the High Court and not by the trial court. Learned counsel further submits that the preliminary decree passed by the trial court has merged with the preliminary decree of the High Court. In this connection, Mr. Maloo has placed reliance on a judgment of the Supreme Court in Venkata Reddy and others v/s Pethi Reddy (1). Section 2 (2) Code of Civil Procedure defines decree as under:— "Decree means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include:— (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final where such adjudication completely disposes of the suit. It may be partly preliminary and partly final." Then section 97 C.P.C. provides that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. It may be partly preliminary and partly final." Then section 97 C.P.C. provides that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The order 20 Rule 18 (2) C.P.C. provides as under:— "If and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required." In Venkata Reddy V/s Pethi Reddy (supra) it has been held as under "A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permits reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res-judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees as preliminary decree and a final decree, the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to S. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree." (25). Mr. Maloo also placed reliance on Collector of Customs, Calcutta vs. East India Commercial Co. Ltd., Calcutta & Others (2) on the proposition that after the appellate authority has disposed of the appeal, the operative order is the order of the appellate court whether it has reversed the original order or modified it or confirmed it. There is no dispute about the above propositions of law; but the matter does not end here. The question still remains whether a preliminary decree can be modified or varied subsequently and if so by which court? (26). In Jagannath Samantra vs. Sudarsan Dass and Others (3), it has been held as under:— "Thus, a partition suit, in which a preliminary decree has been passed, is still a pending suit, and the rights of the parties, who are added after the preliminary decree, have to be adjusted at the time of the final decree, when the rights of the parties have to be declared, opportunities should be given to the legal representatives of the deceased parties to agitate their rights. In case there be any controversy as to such rights, it is at this stage that it is open to them to present their case, before the final decree is passed." (27). In Phoolchand and another vs. Gopal Lal (4), the Apex Court of the country has considered the effect of a preliminary decree in para no. In case there be any controversy as to such rights, it is at this stage that it is open to them to present their case, before the final decree is passed." (27). In Phoolchand and another vs. Gopal Lal (4), the Apex Court of the country has considered the effect of a preliminary decree in para no. 7 of the judgment which reads as under :— "We are of opinion that 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. We have already said that it is not disputed that in partition suit 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 decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a 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 as a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary decree and final decrees are passed. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary decree and final decrees are passed. There is no prohibition in the Code of Civil Procedure 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 Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible and obviously this is not 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 alter the preliminary decree particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. 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 the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore, agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore, reject this contention of the appellant." (28). In Shivaramaiah V/s Mallikarjunaiah and others (5), Division Bench considered as to which court is a proper court where application for modification of a preliminary decree can be filed. The court held as under :— "The only other question that survives for consideration is as to whether the application for adjustment of the shares consequent upon the death of the second plaintiff in this case, can be made to this court or to the court of first instance. It is clear from the facts of Phoolchands case ( AIR 1967 SC 1470 ) that the decree for partition ultimately stood merged in the decree made by the Mahkma Khas (Privy Council) of the State of Jaipur. But, before the final decree could be made some of the parties died and an application for adjustment of the shares was made to the court of first instance and not to the appellate court of Mahkma Khas. It is the decision of the court of first instance on such an application that was challenged in the High Court which ultimately came before the Supreme Court. It is clear from these facts that though the preliminary decrees stood merged in the decree of the superior court, the application was made to the court of first instance. It is no doubt true that this question was not directly debated before the Supreme Court. It is clear from these facts that though the preliminary decrees stood merged in the decree of the superior court, the application was made to the court of first instance. It is no doubt true that this question was not directly debated before the Supreme Court. But, it appears to us, having regard to the view taken by the Supreme Court in para 7 of its judgment, the proper court to which such an application can be made is the court of first instance and not the appellate court even if the decree of the court of first instance was modified by the appellate court. The reason for this view of ours is that the Court in such a case is not called upon the review the decree or to amend the decree. It is only the court which made the decree that can amended or review its own decree. But, in a case like this, what is prayed for is the passing of a further decree in the light of the events that have taken place subsequent to the passing of the decree under O.20 r. 18(1) of the C.P.C. Therefore, when the court is approached with such an application, it is not asked to sit in judgment over the decree already made under O.20 R. 18. What it is called upon to do so is to adjust the right of the parties in view of the subsequent events that have taken place. We, therefore, see no reason why the court of first instance cannot be approached with such an application. Besides, the court of first instance will be in a better position to deal with the case as it may have to take evidence if the circumstances of the case so demand. An application for a further decree adjusting the rights of the parties consequent upon the death of the second plaintiff can be filed in the court of first instance and not in this court." (29). In Ghanshyam Martha vs. Brundaban Pradhan and another (6), the court held as under:— "The Code, therefore, provides that the rights of the parties may be determined in the first instance and their disputes regarding divisions, allotments, ascertainment of assets and liabilities etc. may be disposed of before a final decree is passed. In Ghanshyam Martha vs. Brundaban Pradhan and another (6), the court held as under:— "The Code, therefore, provides that the rights of the parties may be determined in the first instance and their disputes regarding divisions, allotments, ascertainment of assets and liabilities etc. may be disposed of before a final decree is passed. All that the court does in passing the preliminary decree is to declare the rights of the parties and the nature of their rights, and until the disputes are finally disposed of and a final decree is passed the suit must be deemed to be pending. During this period the court may give such directions as may be necessary from time to time to adjust the equities between the parties as regards the valuation of the properties and their allotment to individual shares and decide all other incidental matters that may arise." (30). In Debendra Jena and others vs. Umakanta Jena and others (7), a single Judge of that High Court after considering the various judgments of the High Courts and the Supreme Court held as under :— "It, therefore, appears to be the settled position of law that the final decree-proceeding is a stage in continuation of the suit for partition. The partition suit should be deemed to be pending until a final decree is passed. The preliminary decree declares and determines the share of parties, but all other equities which requires determination and adjustment amongst them are to be decided in the final decree-proceeding with the objective of not driving the parties to institute separate suits. Events which have happened subsequent to the passing of the preliminary decree can also be taken into consideration and decided at the stage of the final decree-proceeding. If rights of parties are decided during the final decree-proceed-ing,such decision will amount to another preliminary decree in the suit for partition. Thus, all disputes of the parties are intended to be settled once for all in the final decree-proceeding so that the parties thereto shall not again approach the court by instituting fresh suits in respect of the subject matter of partition." (31). A similar view has been taken by Division Bench of Calcutta High Court in Kalyan Kumar Basak vs. Salil Kumar Basak and others, (8). (32). A similar view has been taken by Division Bench of Calcutta High Court in Kalyan Kumar Basak vs. Salil Kumar Basak and others, (8). (32). From the above authorities, the law on the point stands settled as under:— (i) In a partition suit, there is no prohibition in passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in the partition suit when after the preliminary decree some parties die. (ii) 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 death of some of the parties. (iii) That the court can draw a fresh preliminary decree after modifying or varying the earlier one if the circumstances justify the same. (iv) The application for the amendment of the preliminary decree can be entertained and decided by the first court which passed the original preliminary decree even though it might have been confirmed or modified by the appellate court. (33). It is true that Smt. Manju Shukla was not a party originally in the suit and her father Jamna Prasad was one of the defendants. It is also true that the application of Smt. Manju Shukla to implead her as a party in the suit filed by her during the life time of her father was dismissed twice by the High Court i.e. 22.3.1983 and Sept. 1, 1986, while deciding the appeal on the basis of a compromise between the parties. (34). After passing of the preliminary decree by the High Court, Jamna Prasad has died on 7.1.1987 and Smt. Manju Shukla has been impleaded as a party, though as a legal heir of Jamna Prasad. Once this proposition of law is held that a preliminary decree can be modified or varied subsequently on happening of subsequent events, then it cannot be disputed that an application for modification of the preliminary decree can be made by her. The fact that her two applications for impleading her as a party were dismissed earlier has no relevance because at that stage her father Jamna Prasad was alive and during the life time of her father she cannot be a co-sharer in the joint properties. The fact that her two applications for impleading her as a party were dismissed earlier has no relevance because at that stage her father Jamna Prasad was alive and during the life time of her father she cannot be a co-sharer in the joint properties. However, after the death of her father, she became a co-sharer in the joint properties as such, she could move an application for modification or variation of the preliminary decree. Therefore, the above contentions raised by Mr. Maloo are devoid of force. (35). The trial court while passing the preliminary decree has observed as under:— "The property shall be divided into three moieties of l/3rd each. If the defendants in the same branch of l/3rd share claim separate shares in between themselves over the properties falling to their shares, they may file an application to that effect before the Commissioner who shall suggest a scheme of dividing the 1/3 moiety of one branch between the shares of that branch. In case the defendants of a branch do not seek division by metes and bounds of the share falling to their branch, the possession of the same may be given jointly to all the sharers of that branch." (36). However, the High Court on an appeal passed preliminary decree in terms of compromise, arrived at between the parties on 5-5-80, as such, the above part of the decree of the trial court was not incorporated in the decree passed by it. (37). The contention of Mr. Maloo can be correct that after the appellate court passed a preliminary decree though in terms of compromise then the preliminary decree passed by the trial court stood merged with the decree passed by the appellate court. But even in that situations, after the death of a defendant in a partition suit if his/her legal heir/heirs become co- sharer/sharers then they or any one of them can claim separate share/shares by metes and bounds. In this connection, the contention of Mr. Maloo is that Smt. Manju Shukla was impleaded as a party in the capacity of being a legal heir/ representative of deceased Jamna Prasad, as such she cannot claim her independent right or title in the suit properties. In this connection, the contention of Mr. Maloo is that Smt. Manju Shukla was impleaded as a party in the capacity of being a legal heir/ representative of deceased Jamna Prasad, as such she cannot claim her independent right or title in the suit properties. For this purpose, reliance has been placed on Judgment of this court in Rameshwar Prasad vs. Pratap Singh & Others (9), wherein it has been held that a legal representative substituted under Order 22 Rule 4 cannot set up a new or individual right he thus stands in the shoes of the deceased plaintiff or defendant, as the case may be. There is no dispute in this legal proposition. But in a partition suit if the legal heir/representative of the deceased defendant or plaintiff also becomes a co-sharer in the joint properties after the death of his/her father then his position becomes dual in the suit. His independent right is consistent with that of his/her father as he/she derives his/her independent right after the death of his/her father. (38). The above proposition of law, therefore, does not comes in a way in case of a partition suit when the legal heir/representative of the deceased defendant/plaintiff becomes a co-sharer in the properties and in that situation he also acquires independent character of a co-sharer. It is also noteworthy that after the death of Jamna Prasad Smt. Manju Shukla had also moved an application on 3-11-89 in the trial court to implead her as a defendant as she also became a co-sharer after the death of her father. (39). The matter may be considered from a different angle. Suppose, Jamna Lal had died prior to the filing of the suit for partition in which Smt. Manju Shukla would have been impleaded as a co- sharer. Whether in that situation she could not have claimed her independent share in the joint properties? If she could claim her independent share in the joint properties in that situation then how she can be precluded from claiming her independent share if that situation arises after the death of Jamna Prasad during the pendency of the suit. The very moment she is impleaded as a party, after the death of her father, she can claim her independent rights as co-sharer in the joint properties. Therefore, I do not agree with the arguments of Mr. The very moment she is impleaded as a party, after the death of her father, she can claim her independent rights as co-sharer in the joint properties. Therefore, I do not agree with the arguments of Mr. Maloo that because Smt. Manju Shukla was impleaded as a defendant in the suit after the death of her father Jamna Prasad in the capacity of legal heir/representative, she cannot claim her independent right of a co-sharer in the joint properties. (40). Hence, the contention No. 4 raised by Mr. Maloo is also rejected. (41). In a partition suit, all disputes between the co-sharers relating to their shares and partition of the joint family properties have to be finally decided. Therefore, any co-sharers though he/she defendant can claim his/her independent separate share by metes and bounds. On this proposition, Smt. Manju Shukla also claim her separate share in the joint properties in the partition suit without any necessity of filing a separate suit by her. (42). If serious questions of law and facts are raised by the opposite party in such a situation then the court has to decide the same. The court cannot deny to decide even serious questions of law and facts raised and ask a co-sharer to file a separate suit. Hence, contention No. 7 raised by Mr. Maloo is also without any force. (43). It is no doubt true that whenever a plea is raised by a co- sharer claiming her/his separate partition, the court is required to hold an enquiry. In such enquiry, the opposite party can raise all such objections permissible in law including that she could not get any share after his/her predecessor on the basis of family settlement or Will etc. When such questions are agitated in defence by the opposite party, the court is bound to decide the same after hearing the parties and if necessary after recording the evidence also. (44). Whether Smt. Manju Shukla had filed a civil suit for partition or not, whether the same has been dismissed and if so, at what stage and on what ground and what is the effect of the dismissal of that suit are such questions which can also be agitated by the opposite party in answer to the claim made by her for partition of her separate share. Therefore, the decision of point no. 6 and 8 raised by Mr. Therefore, the decision of point no. 6 and 8 raised by Mr. Maloo depends on the decision of point no. 1 and 2. (45). I now proceed to decide point no. 1 and 2 which have been seriously and vehemently argued before me, as this may have a serious bearing on the final decision. (46). From the record of the trial court, it appears that Smt. Manju Shukla has moved an application on 6.5.89 under section 151 C.P.C. by which she claimed her separate share in the joint properties. From the endorsement on the application, it appears that the copy of this application has been received by Sh. Durga Prasad, Advocate. Sh. Durga Prasad was appointed as Commissioner by the trial court to prepare a scheme. From the order sheet of the trial court dt. 6.5.89 it also appears that copy of the application was given to Sh. Durga Prasad only. There is no order that notices be issued to the other Advocates or the parties. The Presiding Officer was on leave on that day. As such, the next date was fixed for the reply and decision on the said application. On 18.5.89 though there is a mention that counsel for the parties are present and the case was adjourned for the next date awaiting the report of the Commissioner similar orders were passed on subsequent dates. Thereafter, there is no mention in the subsequent order-sheets fixing the application for arguments and decision and the case was adjourned from time to time to await the report of the Commissioner. In this connection, reference may be made to the order sheet dt. 15.11.89, 20.1.90, 5.4.90, 20.4.90, 7.5.90 and 28.5.90. Then the order sheet of dt. 9.7.90 reads as under:— ^^odqyk, Qjhdsu gkftjA nj[okLr fnukad 6-5-89 ij cgl lquh xbZA eqdnek okLrs vknsk nj[okLr rk- 13-7-90 dks isk gksA** On 13.7.90 the order has been passed by the learned Magistrate. (47). The petitioner Smt. Manju Shukla has also moved a separate application under order 39 rule 1 and 2 C.P.C. in the trial court and the same was filed on 16.2.90. In that application, the petitioners and non-petitioners Smt. Indira Shukla have been made parties. On the back of this application there is an order of the court dt. 16.2.90 that the application be registered and notices be issued to the non-petitioners. It appears that notices were issued to the opposite party. In that application, the petitioners and non-petitioners Smt. Indira Shukla have been made parties. On the back of this application there is an order of the court dt. 16.2.90 that the application be registered and notices be issued to the non-petitioners. It appears that notices were issued to the opposite party. (48). On 31.03.1990 Sh. Surendra Nath Sharma, Advocate filed his power on behalf of the petitioners. He also filed the reply to the application under order 39 rule 1 and 2 C.P.C. (49). It further appears that the said application was posted for hearing on 5.4.90. On the said application, arguments were heard on 5.4.90. Then again arguments were heard on 9.7.90. It appears that the arguments were heard by the trial court on the application under order 39 Rule 1 and 2 C.P.C. as well as on the application of Smt. Manju Shukla dt. 6.5.89 on 7.9.90 as there is a mention of this fact in both the order sheets. It may also be possible that the arguments might have been heard on the application under order 39 rule 1 and 2 C.P.C. and in the main file, the order sheet was also drawn that arguments were heard on the application dt. 6.5.89 as the arguments in both the cases more or less were the same. Be that as it may, the fact remains that from the record it does not appear that specific notices were given to the affected parties i.e. the petitioner and non- petitioners Indira Shukla about the application dt. 6.5.1989 filed by Smt. Manju Shukla. In this connection, the petitioners have also filed a subsequent application with an affidavit of the petitioner Deepak that they had no notice of the application dt. 6.5.1989 and that neither any one of them or their counsel was present in the trial court on 6.5.1989 when the application was moved by Smt. Manju Shukla. It has also been denied that the arguments were heard on the application dt. 6.5.89. (50). In the normal course, the recitals made in the order sheets have to be accepted to be correct and whenever any review petition comes then it is for the trial court to pass necessary orders. Therefore, I could have waited till the order is passed by the trial court on the subsequent application filed by the petitioners on Sept. 20, 1990 praying to cancel/withdrawn the order dt. Therefore, I could have waited till the order is passed by the trial court on the subsequent application filed by the petitioners on Sept. 20, 1990 praying to cancel/withdrawn the order dt. 13.7.90 passed on the application of Smt. Manju Shukla dt. 6.5.1989 and decide the said application after giving an opportunity to file the reply. But there are some salient features in the case which prevent me to await the order of the trial court on that application. (51). Smt. Manju Shukla had made applications to be impleaded as a party in the suit during the life time of her father. However, those applications were rejected by the concerned court and those applications were seriously contested by the petitioners. (52). From the record, it is born-out that the petitioners have been pleading some family settlement between the parties and a Will by the deceased Jamna Prasad to deny Smt. Manju Shukla from her share. It also appears that Smt. Manju Shukla has filed a suit and the same was dismissed. However, there is no material on the record as to how and when and under what order, the suit was dismissed. (53). In these circumstances, if the application dt. 6.5.1989 had been properly served upon the petitioners and non-petitioner Smt. Indira Shukla then they or anyone of them might have seriously contested by filing the reply of the same. From the record, it does not appear that such application has been served upon the petitioners and non-petitioner Indira Shukla. It might be possible that the learned Addl. Sessions Judge might have also drawn the attention of Sh. S.N. Sharma about the application of Smt. Manju Shukla at the time of hearing arguments on 9.7.90 but that cannot be said to be a proper opportunity to the petitioners. Therefore, it is held that the application dt. 6.5.89 filed by Smt. Manju Shukla has been decided by the learned trial Judge without providing proper opportunity to the affected parties to file the reply of the same & contest it on merits. Hence, contention no. 1 & 2 are decided accordingly. (54). I may also deal the objections raisd by Mr. Mehta that the revisions filed by the petitioners are not maintainable on the ground that the order dt 13.7.90 passed by the trial court on the application of Smt. Manju Shukla dt. Hence, contention no. 1 & 2 are decided accordingly. (54). I may also deal the objections raisd by Mr. Mehta that the revisions filed by the petitioners are not maintainable on the ground that the order dt 13.7.90 passed by the trial court on the application of Smt. Manju Shukla dt. 6.5.89 amounts a preliminary decree and the same is appealable. It is no doubt that any amended preliminary decree or any amendment in the share of a preliminary decree is also a preliminary decree and the same is appealable. This proposition of law cannot be disputed and it also gets support from the judgments which I have referred earlier. But in the instant case from the order of the trial court, it does not appear that the share of Smt. Manju Shukla has been defined by It. On the contrary, the learned Judge has sought suggestion from the Commissioner about the shares and the schemes about the division among the heirs of late Jamna Prasad for the l/3rd properties of his share. In a preliminary decree, the court has to finally determine the share of the co-sharers and the scheme of the division has to be chalked out in pursuance to the preliminary decree. (55). After the suggestions of the Commissioner, the trial court might have differed about the respective shares of the heirs of late Sh. Jamna Prasad. In my view, the said order of the learned trial court does not amount a preliminary decree. Even it had been a preliminary decree, I would not have dismissed the revision because an appeal against the preliminary decree also lies before this court and the period of limitation for filing the appeal is the same as prescribed for filing a revision petition. In that case, the only question would have been about the payment of additional court fees. Therefore, I reject the preliminary objection raised by Mr. Mehta. (56). As I have held that the application dt. 6.5.89 has been decided by the trial court without proper hearing to the parties, it is a jurisdictional error, as such, a revision is maintainable. (57). Taking into consideration the entire material on record, especially the fact that from the record, it does not appear that the application dt. 6.5.89 has been served upon the petitioners or non-petitioner Mrs. 6.5.89 has been decided by the trial court without proper hearing to the parties, it is a jurisdictional error, as such, a revision is maintainable. (57). Taking into consideration the entire material on record, especially the fact that from the record, it does not appear that the application dt. 6.5.89 has been served upon the petitioners or non-petitioner Mrs. Indira Shukla and the fact that no reply has been filed by them and also the fact that the petitioners have been seriously contesting the claim of Smt. Manju Shukla on the ground of some family settlement between the parties as well as a Will alleged to have been executed by deceased Jamna Prasad and no enquiry has been made with regard to them in the absence of any reply by the petitioners, I think it just and proper to give the benefit of all these lapees to the petitioners. Therefore, I think it just and proper that the application dt. 6.5.89 should be decided afresh by the learned trial court after giving an opportunity to the affected parties to file the reply to the said application and if necessary, to hold an enquiry also. (58). The result of the above discussions may be summarised as under (i) That the application filed by Smt. Manju Shukla dt. 6.5.89 under section 151 C.P.C. in the trial court is maintainable; and she can claim, as a co-sharer, her separate share in the joint properties in accordance with the law. (ii) The above application dt. 6.5.1989 shall be decided afresh by the trial court after giving an opportunity to the affected parties. They will be free to file their reply to the said application and the trial court shall also be free to hold an enquiry, if necessary, before deciding the said application. (iii) The petitioner or any other aggrieved party shall be free to file objections permissible under law including the fact that Smt. Manju Shukla does not have any share in the properties on account of any family settlement or Will etc. They will also be free to raise objections with regard to filing of a civil suit by Smt. Manju Shukla and the effect of the said suit shall be determined by the trial court if such plea is raised there. They will also be free to raise objections with regard to filing of a civil suit by Smt. Manju Shukla and the effect of the said suit shall be determined by the trial court if such plea is raised there. (iv) The learned trial court is competent to make modification/variation in the preliminary decree if such necessity arises on the decision of the above application filed by Smt. Manju Shukla. (v) As the matter is an old one, therefore, I direct that the above application of Smt. Manju Shukla shall be decided by the trial court as expeditiously as possible after giving an opportunity of hearing to all the concerned parties who might be aggrieved from the decision of the said application. (59). To avoid further delay, I direct that the petitioners in Civil Revision No. 747/90 and 831/90 and non petitioner Smt. Manju Shukla to appear in the trial court either personally or through their counsel on July 24, 1991. (60). Consequently, the Revision Petitions No. 747/90 and 831/90 are partly allowed as indicated above. However, parties are left to bear their own costs. (61). On the basis of the above findings, I am of the view that till the application of Smt. Manju Shukla dt. 6.5.1989 is decided, no interference is required in the injunction order passed by the trial court on 13.7.1990. In case the application of Smt. Manju Shukla is rejected then the appellants shall be free to move an application in the trial court for vacation/modification in the injunction order passed by it. (62). Hence, Misc. Appeal No. 330/90 is also dismissed but without any order for the costs.