Judgement

WANCHOO, J. : This is an appeal on a certificate granted by the Rajasthan High Court and arises in the following circumstances. Phool Chand appellant had filed a suit in 1937 for partition of his one-fifth share in certain properties mentioned in the schedule to the plaint. The defendants to the suit were Sohanlal, father of the appellant, Gopal Lal, brother of the appellant, and Rajmal, minor adopted son of Gokalchand (deceased) who was another brother of the appellant and Smt. Gulab Bai, mother of the appellant. There were two other defendants with whom we are not concerned now. The suit was resisted by the defendants and a large number of pleas were raised with which we are also not concerned now. That suit was fought right upto the Mahkma Khas (Privy Council) of the former State of Jaipur and a preliminary decree for partition was passed specifying the shares of the appellant and the four defendants mentioned above on August 1, 1942. Before, however, a final decree could be passed on the report of the Commissioner in terms of the preliminary decree, Sohan Lal died on May 13, 1947 and soon after his widow, Smt. Gulab Bai also died on November 22, 1947. Disputes seem to have arisen about the shares allotted to these two persons. It appears that Gopal Lal claimed that his father Sohan Lal had made a will in his favour on June 2, 1940, according to which he bequeathed all his property to Gopal Lal. Phool Chand challenged the genuineness of the will. As to the share of Smt. Gulab Bai, Phool Chand claimed that she had executed a sale deed dated October 19, 1947 and registered on January 10,1948 by which she sold all her share in movable and immovable properties which came to her by the decree of August 1, 1942 to Phool Chand. Gopal Lal, however, contended that Smt. Gulab Bai was not entitled to sell the share which she got in the ancestral property as she was a limited owner and therefore her share must be held to have devolved on Gopal Lal, Phool Chand and Rajmal. ; These disputes were brought before the court soon after the deaths of Sohan Lal and Smt. Gulab Bai, but nothing seems to have been done for many years. It was only on July 12, 1961 that the trial court decided the disputes with respect to the shares of Sohan Lal and Smt. Gulab Bai. It came to the conclusion that the will had not been proved. It also upheld the sale deed in favour of Phool Chand appellant. In consequence the trial court re-distributed the shares indicated in the preliminary decree of August 1, 1942. By this re-distribution, the share of Phool Chand was increased from one-fifth to one-half; the share of Gopal Lal was increased from one-fifth to one-fourth, and the share of Rajmal was increased from one-fifth to one-fourth. The trial court however did not prepare another formal preliminary decree on the basis of the re-distribution of shares.

2. Thereupon Gopal Lal went in appeal to the High Court and wanted stay of proceedings relating to preparation of final decree. In these proceedings Phool Chand objected that the appeal was not maintainable as no decree had been prepared by the trial court and no copy of the decree had been filed along with the memorandum of appeal. The High Court thereupon passed an order adjourning the matter to enable Gopal Lal to move the trial court to draw up a formal decree. Gopal Lal thereafter moved the trial court for amending the preliminary decree. But that application was rejected in September 1962. Thus the appeal of Gopal Lal in the High Court proceeded without a copy of the decree being on the record.

3. A preliminary objection was raised in the High Court on behalf of Phool Chand appellant on the date of hearing that as no copy of the decree had been filed along with the memorandum of appeal, the appeal was not maintainable. It was also objected that in any case there could be no second preliminary decree and that the order of the trial court varying the shares in the preliminary decree could be appealed fr