Judgment :- The appellant in this Second Appeal is the appellant in A.S.No. 441 of 1987 on the file of the District Court of Thiruvananthapuram and is defendant No. 12 in O.S.319 of 1984 of the Subordinate Judge's Court of Thiruvananthapuram. O.S.319 of 1984 was a suit for partition filed by the predecessor of respondents 13 to 16 herein. Overruling the claims of defendant No. 12 a preliminary decree for partition was passed by (he trial court on 21-3-1987. The 12th defendant filed an appeal A.S.441 of 1987 on 14-12-1987 challenging the said preliminary decree. 2. The appeal A.S.441 of 1987 came up for hearing on 7-1-1994. It appears that pending the appeal a final decree had been passed the trial court in terms of the preliminary decree that was the subject matter of challenge in that appeal. It is stated in the judgment under appeal by the lower appellate court that "when the appeal came up for hearing on 7-1-1994 both sides submitted that final decree has been passed during the pendency of this appeal and the present appeal has become infructuous. Hence both sides agreed for dismissal of the appeal without any order as to costs and recording that the legal representative of the first respondent/ plaintiff have been impleaded as additional respondents 14 to 17". It is this dismissal of the appeal that is challenged by the 12th defendant in this Second Appeal. 3. It is seen from the endorsement that notice of the Second Appeal has been served on respondents 1, 8 to 10 and 13 and vakalath has been filed for respondents 14 to 16. Respondents 13 to 16 being the legal representatives of the deceased plaintiff I have dispensed with service of notice on the other respondents in the view I propose to take in this Second Appeal. 4. The learned counsel for the contesting respondents submitted that what the lower appellate court has done is to record a concession made on behalf of the 12th defendant appellant that a final decree has been passed pending the appeal against the preliminary decree and hence the appeal against the preliminary decree has become infructuous. 4. The learned counsel for the contesting respondents submitted that what the lower appellate court has done is to record a concession made on behalf of the 12th defendant appellant that a final decree has been passed pending the appeal against the preliminary decree and hence the appeal against the preliminary decree has become infructuous. Such a concession is recorded in the judgment under appeal and the learned counsel for the contesting respondents is correct in his submission that it is not open to this court to entertain a contention that no such concession was made before the lower appellate court even if the 12th defendant-appellant has such a case since the remedy of the 12th defendant-appellant in that case would be to move the lower appellate court for a review of its decision. But the concession that is seen made consists of two parts one a concession on a question of fact that a final decree has been passed pending appeal from the preliminary decree and a concession on a question of law that the passing of such a decree makes the appeal against the preliminary decree infructuous. Though a concession on a question of fact by counsel is binding on the party clearly a concession on a question of law cannot be so binding. If that be so the concession said to have been made by counsel for the 12th defendant that the appeal against the preliminary decree has become infructuous in view of the passing of the final decree in the suit pending the appeal cannot be biding on the 12th defendant since that concession is a concession on a question of law. It is therefore not necessary for the 12th defendant to seek are view of the judgment of the lower appellate court in so far as it relates to that concession and he is entitled to agitate that question as a question of law before this court in this Second Appeal. Of course the 12th defendant is not questioning the concession made on his behalf that a final decree has been passed pending the appeal before the lower appellate court challenging the preliminary decree. I therefore propose to consider onmerits whether the lower appellate court was correct in law in dismissing the appeal before it as having become infructuous merely on the basis of a concession said to have been made in that behalf. 5. I therefore propose to consider onmerits whether the lower appellate court was correct in law in dismissing the appeal before it as having become infructuous merely on the basis of a concession said to have been made in that behalf. 5. It is surprising that the learned District Judge has not referred to any authority or provision of law for accepting the concession that an appeal from a preliminary decree becomes infructuous on the passing of a final decree pending such an appeal. It appears to me that when such concessions on questions of law are made there is a duty on the court to look into the question whether such a concession is rightly made and adopt such a concession only if it is satisfied that the concession on a question of law was right. In my view the court is not expected merely to accept an untenable concession on a question of law merely because such a concession is made by counsel appearing in the case. In this case the lower appellate court ought to have considered that question for itself before accepting and acting upon the concession made on behalf of the 12th defendant. 6. A preliminary decree is the foundation on which the edifice of the final decree is built. In a suit for partition what brings about a finality to the suit is passing of a final decree. It is only for the purpose of convenience that the court passes a preliminary decree in a suit for partition. Preliminary decree clearly determines the rights of parties and what is done in the final decree is only to work out the rights so determined in the preliminary decree. Explanation to S.2(2) of the Code of Civil Procedure explains that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. 0.20 R.18 sub-rule 2 indicates that when a suit for partition relates to property not coming under sub-rule (1), 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. 0.20 R.18 sub-rule 2 indicates that when a suit for partition relates to property not coming under sub-rule (1), 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. It is clear from the scheme of the Code that what a preliminary decree for partition does is to declare the rights of parties and their entitlement to specific shares. What the court does while passing the final decree is only to work out the rights already declared by the preliminary decree so that the sharers could be put in possession in severalty. In my view it is impossible therefore to postulate that in an appeal from the preliminary decree declaring the rights of parties the appellate court is incompetent to consider the correctness of the decision merely because pending the appeal, the preliminary decree had been followed up and a final decree made. So long as the right of appeal is provided against a preliminary decree, anything done pursuant to that preliminary decree has necessarily to be subject to such appeal from the preliminary decree and the mere fact that a final decree had been passed pending the appeal against a preliminary decree cannot in any way affect or abridge the jurisdiction of the appellate court to hear and determine the legality of the declaration of rights made by the trial court while passing the preliminary decree. If as noticed earlier, the preliminary decree is the foundation, the final decree that is the edifice over the foundation cannot stand once the foundation itself is removed by the appellate court finding the preliminary decree illegal or unsustainable. 7. Really, there is not much doubt about this position. S.97 of the Code of Civil Procedure indicates that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he would be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Obviously the finality of the preliminary decree could not be challenged in an appeal against the final decree in view of S.97 of the Code of Civil Procedure. Obviously the finality of the preliminary decree could not be challenged in an appeal against the final decree in view of S.97 of the Code of Civil Procedure. But for S.97 it would be have been possible, in law, to contend that the preliminary judgment is only an inter-locutory judgment, rights of parties would be finally settled only by the final decree and a litigant who is aggrieved by the final determination is always entitled to challenge in the appeal against the final determination any interlocutory order or judgment that might have led to the final decree by which he is aggrieved. If any authority is needed for this proposition the same is furnished by the decision of the Privy Council in Maharajah Moheswar Singh v. The Bengal Govt. (VII M.I. A. 283) followed by the Full Bench of our court in Syed Alavi v. State of Kerala (1981 KLT 548). It is to prevent such an argument that S.97 of the Code had been enacted. S.97 of the Code is a provision more or less parallel to S.105(2) of the Code of Civil Procedure which precludes in a challenge against a final decision reached pursuant to an earlier order of remand-which in law could only be an interlocutory judgment- a challenge to the order of remand itself. There is no provision express or implied in the Code, that once a final decree is passed a suitor is precluded from filing an appeal from the preliminary decree or pursuing an appeal already filed. 8. As a matter of fact, the uniform judicial opinion has been that the passing of a final decree subsequent to the institution of the appeal against the preliminary decree will not affect the maintainability of the appeal from the preliminary decree. Though the Calcutta High Court had earlier taken a view that if the appeal from the preliminary decree had not been filed before the passing of the final decree, the same could not be entertained, that view was modified by the same court in its subsequent decision reported in Kasi Nath v. Himmat Ali ( A.I.R 1928 Cal.720). Though the Calcutta High Court had earlier taken a view that if the appeal from the preliminary decree had not been filed before the passing of the final decree, the same could not be entertained, that view was modified by the same court in its subsequent decision reported in Kasi Nath v. Himmat Ali ( A.I.R 1928 Cal.720). That court also fell in line with the decisions of the other courts which had taken the view that even the passing of the final decree prior to the filing of the appeal from the preliminary decree would not in any way preclude a valid challenge to the preliminary decree by way of appeal. In fact, a reference to the relevant commentaries under S.97 of the Code of Civil Procedure indicates that almost the uniform view now current is that the passing of a final decree pending an appeal from a preliminary decree or even before an appeal from the preliminary decree is filed does not in any affect the competence of the appeal from the preliminary decree. As far as the area from where this Second Appeal arises is concerned, the position was that an appeal can be preferred against a preliminary decree even after the final decree has been passed. (See Govinda Kurup Govinda Kurup and others v. Rama Kurup Govinda Kurup and others, 36 Travancore Law Journal 301). Thus, the view of the lower appellate court or the purported acceptance by it of the concession that the appeal against the preliminary decree becomes infructuous on the passing of a final decree pending such appeal is clearly untenable. If that being so, the dismissal of the appeal against the preliminary decree on that ground by the lower appellate court requires to be set aside and the appeal remanded to that court for a fresh disposal on merits and in accordance with law. In the result I set aside the judgment and decree of the lower appellate court and remand the appeal to the court below for a fresh disposal of the appeal on merits and in accordance with law. In the circumstances of the case I make no order as to costs. The parties will appear before the 1st Additional District judge's Court, Trivandrum on 1-11-1994.