A preliminary decree for partition in a suit for partition between members of a joint Hindu family has the effect of severing the joint status of the family, and the members of the family are entitled to claim their augmented shares in the family property upon the death of a coparcener pending the suit.

1. This appeal raises an interesting question under the Hindu Law which is as to the effect of a preliminary decree made in a suit for partition upon the status of the family being continued joint.

2. The few facts, which are relevant to this question, are these : A Hindu family consisted of one Rajaram and his wife Hirabai. He has six sons; (1) Parashuram, (2) Balaram, (3) Ramakrishna, (4) Laxmikant, (5) Shamsundra and (6) Ashotharam who were respectively the plaintiff, defendant No. 3, defendant No. 4, defendant No. 5, defendant No. 6 and defendant No. 7 in suit No. 29 of 1947. In that year, Parshuram filed the aforesaid suit to recover, by partition, possession of his 1/8th share in the property described in the plaint. This suit resulted in a preliminary decree on the 29th November 1949, the terms of which were as follows :

"Plaintiff do recover possession of 1/8th share in the properties found in inventory and that in Schedules B and C of plaint by partition by metes and bounds from defendants Nos. 1 to 2 and whatever other defendants that arc found to be in possession. Defendants Nos. 1 to 7 have each 1/8th share in the above properties. They may get their share partitioned in execution proceedings on payment of necessary stamp. The partition of lands shall be done by the Collector or any of his gazetted subordinates and that of other properties by the Commissioner to be appointed by the Court in execution proceedings. Provision for marriage expenses of defendant No. 1s two daughters shall be made in execution. The court-fee due to Government and costs of suit shall he paid by defendants Nos. 1 and 2 in proportion to the extent of plaintiffs success while the rest of the court-fees shall be paid by plaintiff. No order for the rest of the costs. A copy of the decree shall be forwarded to the Collector through Government Pleader. Inquiry into future mesne profits as directed under Order 20, Rule 12 (c), Civil Procedure Code."

From this decree, defendants Nos. 1 and 2 preferred First Appeal No. 172 of 1950 in this Court and that First Appeal was withdrawn on the 11th June 1953. While the appeal was pending in this Court, Rajaram, the 1st defendant, died in 1952, Pursuant to the preliminary decree, the plaintiff filed Special Darkhast No. 2 of 1950 for partition and possession of his share in accordance with the decree passed in suit No. 29 of 1947. In the course of the darkhast, the plaintiff applied to have the decree amended and, to have awarded to him a 1/7th share. But it appears that the executing Court refused to grant the plaintiffs request. The plaintiff then applied to have the decree amended and claimed, by the application, that the decree be amended by providing that the plaintiffs share was 1/7th instead of 1/8th as awarded under the preliminary decree and this was on 5th February, 1954. Notice of this application was issued to the opponents and, upon hearing the parties, the learned Judge of the Court below dismissed the plaintiffs application on 23rd March 1955, holding that defendants Nos. 1 to 7 remained joint in spite of the preliminary decree and, although the relief claimed by the plaintiff could be given to him in the proceedings, the plaintiffs share was 1/8th and not 1/7th, as claimed by him. The plaintiff, feeling aggrieved by this order has come up in appeal.

3. Upon this appeal, a preliminary objection has been taken by Mr. Datar appearing for the respondents and the preliminary objection is that no appeal lies in this case. It is urged by him that no appeal would lie against the order of the 23rd March 1955 because the order of the 23rd March 1955 is an order made upon an application made by the plaintiff and, therefore, no appeal would lie. In other words, the contention is that the order of the 23rd March 1955 would not amount to a decree and, therefore, no appeal would lie. The expression decree has been defined in Section 2 (2) of the Code of Civil Procedure and a decree means the formal