P L D 1953 Lahore 256 (PLP)

KAIKAUS, J.‑

Mehr Bakhsh father of the present appellant died on the 29th July 1932 leaving behind hire a widow Afsa. Fazal un‑Nisa, two sons Muhammad Hafeez rind the appellant, and three daughters Mst. Wazir Begum, Mst. Iqbal Begum and Mst. Amrr Begum. Mst. Amir Begum died some time after her father and left two sons Said ud‑Din and Rashid‑ud‑Din, one daughter Mst. Surayya Begum and a husband Taj‑ud‑Din. On the 2nd July 1940 Muhammad Hafeez respondent filed Civil Suit No. 118 of 19:11, claiming in the alternative one fourth or one- half share of the property belonging to Mehr Bakhsh by partition. In this suit a preliminary decree was passed on the 5th March 1942 and Muhammad Hafeez plaintiff was granted one‑fourth of the property instead of one‑half, it having been found that the parties were governed not by custom as alleged by the plaintiff but by Muhammadan Law. All the descendants of Mehr Bakhsh named above had been made parties to the suit. An appeal against this preliminary decree was dismissed by the High Court on the 10th April 1946. In the meantime, on the 13th December 1945, Mst. Fazal‑un‑Nisa died. On the 20th December 1947, Muhammad Hafeez plaintiff put in a petition under section 151 of the Code of Civil Procedure, for an increase of his own share by 1/24 as he too was one of the heirs of Mst. Fazal‑un‑Nisa. On the 22nd December 1947 the two sisters and the children of the third put in a petition that the shares belonging to them be also separated. Muhammad Latif, the present appellant, contested both these applications. o far as Mst. Fazal‑un‑Nisa's share is concerned he contested it on the ground that Mst. Fazal‑un‑Nisa was possessed of other property too and if her share in the property in dispute was decided separately that would be a case of partial partition and he would be prejudiced because Mst. Fazal‑un‑Nisa's property which was not in dispute was in the possession of the other parties With respect to the prayer of the two sisters and the children of the third (defendants Nos. 3 to 7) that their shares too be separated he pleaded that as a preliminary decree bad already been passed which did not make any provision for the separation of their shares the prayer was too late. Both the matters have been decided against him. He has come up in appeal. With respect to division of the share of Mst. Fazal‑un‑Nisa it is not the appellant's case that the trial Court had got no jurisdiction to proceed as it did. It is only a question of exercise of discretion. Partial partition is no doubt allowed only in exceptional cases but there is no legal bar to a part of the pro perty being divided. With respect to the other property of fist. Fazal‑un‑Nisa we understand that there is a suit going on between the present appellant and other parties to whom that property is alleged to have been gifted by a registered deed. It would unnecessarily delay the proceedings in this case if the result of that suit be awaited and within has been shown to us on the basis of which it may be held that the partial partition will in the present case prejudice the appellant. We see no reason to interfere with the discretion exercised by the learned Subordi nate Judge. In respect of the other plea the learned counsel for the appellant argues that a preliminary decree having once been passed no alteration or amendment of that decree is allowed by the law. If defendants Nos. 3 to 7 were not satisfied they could, he says, have appealed against the preliminary decree, but the proper time for asking for a separation was then and not after the preliminary decree. It is conceded that in a partition suit a defendant can ask for the separation of his share too. It is conceded too that a suit for partition remain pending till the passing of the final decree. Apparently, therefore, unless some definite legal bar was shown which prevented the Court from exercising its jurisdiction of allowing an amendment of the written statement, no objection could be taken to the legality of the order allowing the separation of the share. Reliance is placed upon Order 20, rule 18 and section 97 of the Code of Civil Procedure. Under Order 20, rule 18, the Court passing a decree for partition can, if the pro perty, be not conveniently capable of division without further enquiry, pass a preliminary decree declaring rights of parties and giving further directions. If the interpretation of Order 20, rule 18 be that the only purpose of which the suit remains pending after the passing of a preliminary decree is the giving of effect to the preliminary decree actually passed by a Court, there would be force in the argument of the learned counsel that at the present stage no fresh orders for division of property can be passed. This however, is not an interpretation which could be placed upon it in view of what has been laid down by their Lordships of the Privy Council in two cases, L. Guran Ditta v. T. R. Ditta (A I R 1935 P C 12) and Jadunath Roy and others v. Parameshwar Mullick and others (A I R 1940 P C 11). In the first mentioned case their Lordships allowed new property to be added to the property of which partition had already been ordered. In the second case their Lordships allowed a new party to be substituted after the preliminary decree, which party was said not even to be bound by the preliminary decree, and the fire decree was passed so as to take account of all the rights of the party added subsequently. The learned counsel has relied upon Ram Narain and another v. Rain Das and others (A I R 1929 All. 65), which does support him, but that case was decided before the Privy Council cases, and, considering the orders which their Lordships have passed in the two cases it is not possible at all to accept the proposition that further proceedings after the preliminary decree in a partition suit are really in the nature of execution of the decree already passed, and if this position be not accepted and it be held, as one is then bound, that the Court maintains its seizin over the whole dispute, there would obviously be no bar to the Court taking any steps which it could have taken before the preliminary decree. The only effect of a preliminary decree is that if it remains un appeal ed its correctness cannot be called in question. That is what is provided in section

97. If really the other parties were trying to dispute the correctness of the preliminary decree, they could not be allowed to do so. But there is nothing at all inconsistent with the preliminary decree in the prayers they are making. The decree, as it stood, related only to the share of Muhammad Hafeez and was quite consistent with the shares of other parties being separated by partition, although it did not make any such provision. On a reference to the record, however, we find that, as a matter of fact, in the original written statement defendants Nos. 3 to 7 did ask for a separation of their shares. In the judgment on which the preliminary decree was based we find that their shares were in fact ascertained. All that has happened is that those shares were not mentioned in the decree itself and the defendants relying upon the fact that it was not necessary neither asked for an amendment of the decree nor preferred an appeal against it. They could have produced either way. Had they applied for an amenduiera, the Court should have allowed it. Learned counsel for the; appellant now argues that as this relief had not been allowed by the preliminary decree it should have been deemed refused and, therefore, the matter would be res judicata. The obvious answer to the objection is that as long as a suit is pending a relief cannot be said to have been refused. It was yet open to the Court to grant this relief and' probably the Court as well as the defendants were under the impression that there was no need for a provision in the preliminary decree itself. The appellant is taking only technical objections. On the merits the parties are entitled to the shares they are claiming and unless there was some provision which absolutely debarred the Court from granting the parties their rights and deciding according to the merits, the Court ought to have acted as it did. We have no hesitation in agreeing with the lower Court in the order it has passed and dismiss the appeal with costs. A. H. Appeal dismissed.