IMPORTANT POINT
A preliminary decree in a partition suit crystallizes rights but does not finalize partition until a final decree is passed, allowing legislative changes to affect the final distribution.

JUDGMENT :

The present Civil Misc. Application has been preferred against the order dated 12.12.2023, passed in Title Suit No. 103 of 1952 by learned Munsif, Aurangabad whereby the learned Court was pleased to reject the petition dated 23.11.2023 filed by the plaintiffs/decree holder for setting aside the earlier Survey Knowing Pleader Commissions report dated 19.11.1957 and for an order for the appointment of new Survey Knowing Pleader Commissioner for carving out Takhta in the light of judgment and order of the court with a provision for the sold land.

2. Learned counsel for the petitioners submits that Title Partition Suit No. 103 of 1952 was instituted by the plaintiff’s ancestor, which, after contest, was decided by judgment dated 20.01.1954, followed by preparation of a preliminary decree on 02.02.1954. For carving out the shares in terms of the preliminary decree, a survey- knowing Pleader Commissioner was appointed, who submitted his report on 19.11.1957. Objections were invited from both parties but no objection was filed, whereafter the report was confirmed. It is further submitted that the order of confirmation dated 04.01.1958 does not bear the seal and signature of the Presiding Officer. Subsequently, on 06.04.2010, the petitioners filed an application for preparation of the final decree along with a prayer for condonation of delay, which was rejected by the trial court vide order dated 13.05.2010. Aggrieved thereby, CWJC No. 10032 of 2010 was filed before this Court, wherein the Hon’ble Court, in paragraphs 5 and 6, held as follows:–

“5. In the case in hand, I find that Survey Knowing Pleader Commissioner submitted its report on 23.11.1957 and the court below confirmed the said report on 04.01.1958 as no objection was filed. The court below disposed of the suit on 08.09.1958 with a direction to draw final decree on filing the necessary stamp and deposit of balance of commissioner’s fee.

6. In view of above discussion and proposition of law, the impugned order passed by the court below is set aside and the matter is remitted to the court below to consider the matter afresh as regards preparation of final decree.”

Learned counsel for the petitioners also placed reliance on judgments passed by Hon’ble supreme court the case of :-

1. Prasanta Kumar Sahoo & others vs. Charulata Sahu & others, reported in (2023) 9 SCC 641 , where it is held in para 74.3 :-

“74.3 – Under the Mitakshara School of Hindu law, a member of a joint Hindu family can bring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. Thus, the institution if a suit for partition by a member of a joint family is a clear intimation of his intention to separate, and there was consequential severance of a status of jointness. Question before this Court in Vineeta Sharma was: in case during the pendency of partition suit or during the period between the passing of preliminary decree and final decree in the partition suit, any legislative amendment or any subsequent event takes place which results in enlargement or diminution of the shares of the parties or altercation of their rights, whether such legislative amendment or subsequent event can be into consideration and given effect to while passing final decree in the partition suit. The court held that even though filing of partition suit brings about severance of status of jointness, such legislative amendment or subsequent event will have to be taken into consideration and given effect to in passing the final decree in the partition suit. This is because, the partition suit can be regarded as fully and completely decided onl