Preliminary decrees in partition cases can be modified based on supervening circumstances, and newly claimed rights must be adjudicated even after initial decisions are made.

ORDER :

1. Writ petition No.12825 of 2021 is filed under Article 227 of the Constitution of India with a prayer to set aside the order dated 12.02.2021 in F.D.P.No.33 of 2012 and Writ petition No.5623 of 2021 is filed to set aside the order dated 06.02.2020 passed on I.A.No.1 of 2019 in FDP.No.33 of 2012 by the Court of XV Additional City Civil & Sessions Judge, Bengaluru.

2. Since these two petitions arise out of a common proceedings, they are heard together and disposed of by this common order with the consent of the learned counsel appearing for the parties.

3. Heard the Learned counsel for the parties.

4. Facts leading to filing of this petition narrated briefly are, petitioners herein had filed O.S.No.4163 of 1989 seeking the relief of partition and separate possession of the suit schedule property. The said suit was partly decreed on 17.04.2008 and it was held that suit schedule Item Nos.1, 2, 4 to 7 of the suit schedule properties are to be partitioned and Item Nos.9 and 10 of the suit schedule properties were held to be the self-acquired property of defendant no.2 and were not available for partition. It was further held that Item No.3 property was kept open for the purpose of establishment of 'Ayurvedic Medical College and Hospital' to fulfil the ambition of Pandit Venkatramanachar, who is the father of the plaintiffs and defendant no.2 and since defendant no.2 Dr.Padmarajamma was a qualified person in Ayurvedic medical field, she was given the responsibility and management of the Item No.3 property for establishing an 'Ayurvedic Medical College and Hospital' in the said property and income to be derived from the said property was to be allotted to the other members of the joint family equally. Subsequently, final decree proceeds in FDP.No.33 of 2012 was initiated by some of the defendants in O.S.No.4163 of 1989 and in the said proceedings, a court commissioner was appointed, who had submitted a report on 10.07.2015. The trial Court vide the order impugned dated 12.02.2021 has accepted the report dated 10.07.2015 submitted by the court commissioner in respect of Item No.4 and 5 of the petition schedule property and the report was rejected in respect of Item No.1, 2 & 3 of the petition schedule property. Being aggrieved by the said order, defendant no.2, 3 and 5 in O.S.No.4163 of 1989 are before this Court in W.P.No.12825 of 2021. Petitioners herein who are the plaintiffs in O.S.No.4163 of 1989 had filed I.A.No.1 of 2019 to include suit schedule Item No.3 property as Item No.7 in the final decree proceedings and the prayer made in I.A.No.1 of 2019 was opposed by the defendants in O.S.No.4163 of 1989. The trial Court, vide the order impugned dated 06.02.2020, has dismissed I.A.No.1 of 2019 and being aggrieved by the same, plaintiffs in O.S.No.4163 of 1989 are before this Court in WP No.5623 of 2021.

5. Learned counsel for the petitioners in W.P.No.12825 of 2021, submits that during the pendency of these petitions, Dr.Padmarajamma, who was defendant no.2 in O.S.No.4163 of 1989 has died on 02.02.2023. After her death, on the strength of the last will executed by her, petitioner nos.2 and 3 in W.P.No.12825 of 2021 are permitted to come on record as the legal representatives. Item No.3 of the suit schedule property has been bequeathed in favour of petitioner nos.2 and 3 in WP No.12825 of 2021 by Dr. Padmarajamma under her last will. Therefore, the said property is not available for partition. She submits that even otherwise the said property is kept away from partition in the preliminary decree that was passed in O.S.No.4163 of 1989 with an observation that the said property shall be ut