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2017 DIGILAW 758 (ORI)

Chhine Sahoo v. Kaldar Sahoo

2017-07-19

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 10.03.2015 passed by the learned Civil Judge (Sr. Divn.), Bolangir in F.D.T.S. No. 64 of 2007, whereby learned trial court rejected the application of the defendant nos.5 and 7 to modify the preliminary decree and adjust their share in favour of their brothers, defendant nos.1 to 4. 2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that opposite party no.1 as plaintiff instituted the suit for partition. The petitioner was defendant no.5 in the suit. The suit was decreed. Thereafter the final decree proceeding was initiated. During pendency of the final decree proceeding, the defendant nos.5 and 7 filed an application to relinquish their interest and allot the same in favour of defendant nos.1 to 4 and modify the decree accordingly. Learned trial court came to hold that the preliminary decree was passed in the absence of defendant nos.5 and 7. They have no locus standi to file application. Further the ground taken by them to modify the decree is not sufficient. Held so, learned trial court rejected the petition. 3. Heard Mr. Prafulla Kumar Rath, learned counsel for the petitioner. None appeared for the opposite parties. 4. Mr. Rath, learned counsel for the petitioner submitted that in a suit for partition even after passing of the preliminary decree, the suit continues to be pending until the final decree is passed and that the Court may take into consideration all subsequent events from time to time and make enquiries in accordance with law. He relied on the decision of the apex Court in the case of Phoolchand and another vs. Gopal Lal, AIR 1967 SC 1470 and this Court in the case of Bhagabati Sahu and others vs. Trilochan Sahu and after him Lakhpati Sahu and others, 1989 (II) OLR-174. 5. The apex Court in the case of Phoolchand and another (supra) held that there is nothing in the Code of Civil Procedure prohibiting the passing of more than one preliminary decree, if circumstances so justify, particularly in partition suits where a preliminary decree has been passed, some parties die resulting in the shares of the other parties being augmented. The Court can and indeed should pass a preliminary decree correcting the shares. The Court can and indeed should pass a preliminary decree correcting the shares. In a partition suit an order of Court making variation in shares specified in the preliminary decree, amounts to a decree. Until final decree is passed, an appeal lies against a preliminary decree passed in the suit. If any event transpires after the passing of the preliminary decree which necessitates changes in shares, the Court can and should make the change and every such order making variation in the shares amounts to a decree. The same view was taken in Bhagabati Sahu and others, (supra). 6. In V.N. Sarin vs. Ajit Kumar Poplai and another, AIR 1966 SC 432 , a question arose before the apex Court as to whether the partition of the coparcenary property among the coparceners can be said to be “an acquisition by transfer” within the meaning of Sec.14(6) of the Delhi Rent Control Act, 1958. A contention was raised that an item of property belonging to the undivided Hindu family is allotted to the share of one of the coparceners of partition, such allotment in substance amounts to the transfer of the said property to the said person and it is, therefore, an acquisition of the said property by transfer. The Constitution Bench of the apex Court held thus: “Prima facie, it is not easy to accept this contention. Community of interest and unity of possession are the essential attributes of coparcenary property; and so, the true effect of partition is that each coparcener gets a specific property in lieu of his undivided right in respect of the totality of the property of the family. In other words, what happens at a partition is that in lieu of the property allotted to individual coparceners they, in substance, renounce their right in respect of the other properties; they get exclusive title to the properties allotted to them and as a consequence, they renounce their undefined right in respect of the rest of the property. The process of partition, therefore, involves the transfer of joint enjoyment of the properties by all the coparceners into an enjoyment in severalty by them of the respective properties allotted to their shares. Having regard to this basic character of joint Hindu family property, it cannot be denied that each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. Having regard to this basic character of joint Hindu family property, it cannot be denied that each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners have subsisting title to the totality of the property of the family jointly, that joint title is by partition transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. If that be the true nature of partition, it would not be easy to uphold the broad contention raised by Mr. Purushottam that partition of an undivided Hindu family property must necessarily mean transfer of the property to the individual coparceners. As was observed by the Privy Council in Girja Bai v. Sadashiv Dhundiraj, 43 Ind App 151 at p.161: ( AIR 1916 PC 104 at p.108): “Partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers”.” (emphasis laid) 7. In Ghanashyam Martha vs. Brundaban Pradhan and another, AIR 1977 Ori. 154 , this Court held that a partition suit must be deemed to be pending till a final decree is actually passed and that any number of preliminary decrees can be passed therein. 8. On the anvil of the decisions cited supra, the instant case may be examined. Merely because, a preliminary decree was passed in the absence of the defendant nos.5 and 7, their rights to property are not wiped out. In the suit, a share has been allotted to them. As held by the apex Court in the case of V.N. Sarin (supra), partition really means that whereas initially all the coparceners have subsisting title to the totality of the property of the family jointly, that joint title is by partition transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. Partition does not give coparcener a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers. Partition does not give coparcener a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers. Thus, they have locus standi to file the application. The court has jurisdiction to make adjustment of share of the parties in the final decree proceeding. 9. In view of the same, the impugned order is quashed. The application filed by the defendant nos.5 and 7 to relinquish their share in favour of defendant nos.1 to 4 is allowed. Learned trial court shall adjust the share of defendant nos.1 to 4 and proceed with the final decree. The petition is allowed.