Additional Properties can be added in Final Decree Petition- Subject to condiiton that non inclusion of total properties were raised as an issue in the suit

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7008 OF 2008
(Arising out of SLP (C) No.959 of 2008)
S. Satnam Singh & Ors. ...
Appellants
Versus
Surender Kaur & Anr. ... Respondents

 

16. Before adverting to the rival contentions of the parties, it must be
kept in mind the principle that ordinarily a party should not be prejudiced by an act of court. It must also furthermore be borne in mind that in a partition suit where both the parties want partition, a defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on records by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject matter of a partition, the
court would be entitled to pass a decree even in relation thereto .

18. While dealing with the application under Section 21 of the
Arbitration Act, 1940 where one of the questions was as to whether an
immoveable property situated in Burma could be a subject matter of

reference, in Phoolchand & Anr. v. Gopal Lal [(1967) 3 SCR 153], it was held :

“7. 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 suits 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 a 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 is 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 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.

The said principle was reiterated in Mool Chand & Ors. v. Dy.
Director, Consolidation & Ors. [AIR 1995 SC 2493], stating :
“The definition of ‘decree’ contained in Section 2 (2) read with the provisions contained in Order 20, Rule 18(2) as also Order 26, Rule 14 of the Code indicate that a preliminary decree has first to be
passed in a partition suit and thereafter a final decree is passed for actual separation of shares in accordance with the proceedings held under Order 26. There are, thus, two stages in a suit for partition. The first stage is reached when the preliminary decree is passed under which the rights of the parties in the property in question are determined and declared. The second stage is the stage when a final decree is passed which concludes the proceedings before the Court and
the suit is treated to have come to an end for all practical purposes.”