N. Kumar, J.

1. This writ petition is filed by the 2nd defendant challenging the order passed by the trial court allowing I.A. under Order VI Rule 17 of the Code for including an immovable property in the Final Decree Proceedings though it was not the subject matter of the suit.

2. The plaintiffs suit for partition and separate possession of his legitimate share came to be decreed after contest. In the Regular Appeal by the 1st defendant, the decree was partly modified and the same attained finality. Thereafter, the plaintiff initiated Final Decree Proceedings.

3. The 1st defendant filed I.A. U/o VI Rule 17 of the Code for including 3 acre 28 gunta in Sy. No. 51 of Talale village, Humcha Hobli, Hosanagara Taluk claiming that it was granted by the Land Reforms Tribunal in favour of the 2nd defendant on behalf of the joint family and that it is also a Joint Family Property. Due to old age and illiteracy, he could not include the said property in the plaint schedule.

4. The said application was opposed by the 2nd defendant. The plaintiff however, did not choose to file objections. After considering the rival contentions of the parties, trial Court allowed the application on the ground that any number of the preliminary decrees can be passed before passing the final decree and the question "whether a property is a joint family property or not" can be gone into in the final decree proceedings and if it is a Joint Family Property, shares could be allotted after ordering for partition of the same. Aggrieved by this order, the present writ petition is filed by the 2nd defendant.

5. I have heard the learned counsel for the parties.

6. It is settled law that, in a partition suit, there can be more than one preliminary decree. If an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so. 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 in would be a second preliminary decree which would be liable to appeal. When after the preliminary decree some parties die and shares of other parties are thereby augmented, it would be convenient to the Court and advantageous to the parties, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. It is based on the principle that a partition suit would not come to an end with the passing of a preliminary decree. The suit is not over till the final decree is passed. The Court has jurisdiction to decide all disputes that may arise after preliminary decree due to deaths of some of the parties. The reason being on account of the death of some of parties, the shares allotted to them in the preliminary decree, may devolve on other parties to the preliminary decree. In which event the preliminary decree becomes defective even before a final decree is passed. There is no mechanism to correct this error, which happens because of a subsequent event after the passing of the preliminary decree and before the final decree is passed, which is beyond anybody's control. Therefore, the Supreme Court has laid down the law to fill up this lacuna in the Code in the case of Phoolchand and Another v. Gopal Lal (AIR 1967 SC 1470), as under:--

7. We are of the 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 spec