A preliminary decree can be passed in a suit for partition without first identifying the properties involved in the suit, and the identification of properties can be done subsequent to the declaration of the shares of the parties in the suit.

JUDGMENT

Debangsu Basak, J. - In a suit for partition, the plaintiff has applied for a preliminary decree in respect of the properties described in Schedules A and B of the plaint.

2. Learned Advocate appearing for the plaintiff has submitted that, the shares amongst the parties are admitted. The defendant No.1 series have raised a specious plea with regard to the schedules of the properties involved in the suit for partition. The Court has the jurisdiction to pass a preliminary decree without identifying the properties involved in the suit. In support of such contentions, he has relied upon ( Bimal Kumar & Anr. v. Shakuntala Debi & Ors., (2012) 3 SCC 548 ), ( Heir of Barot Dansang Hirji & Ors. v. Barot Kanji Hirji & Ors., (1998) AIR Gujarat 27 ), ( T. Ramaswami Aiyar v. T. Subramania Aiyar, (1923) AIR Madras 147 ), ( Smt. Gita Dey & Ors. v. Smt. Nalinibala Dey & Ors.,2014 2 HCC(Cal) 230 ), ( Smt. Gita Dey & Ors. v. Smt. Nalinibala Dey & Ors., (2015) 1 CalHN 688 ) and ( R.B.S.S. Munnalal & Ors. v. S.S. Rajkumar & Ors., (1962) AIR SC 1493 ).

3. Learned Advocate appearing for the plaintiff has relied upon Order XX Rule 18 and Order XXVI Rules 13 and 14 of the Code of Civil Procedure, 1908 in respect of his contentions that, the Court can pass a number of preliminary decrees as the situation demands and that there is no impediment in the Court passing a preliminary decree declaring the shares of the parties by appointing a Commissioner of Partition to identify the properties and thereafter directing the partition of such identified properties. He has submitted that, the Court need not be detained till all the properties involved in the suit are identified for the purpose of declaring the shares of the parties in the suit properties. The exercise of identification of the properties can be done subsequent to the declaration of the shares of the parties in the suit.

4. Learned Senior Advocate appearing for the defendant No. 1 series has submitted that, without the suit properties being identified, a preliminary decree declaring the shares of the parties to the suit cannot be passed. In support of his contentions, he has relied upon ( Satya Kumar Banerjee v. Satya Kirpal Banerjee & Anr., 3 IndCas 247 ), ( Upendra Nath Banerjee & Anr. v. Umesh Chandra Banerjee, (1910) 15 CalWN 375 ) and ( Shub Karan Bubna v. Sita Saran Bubna & Ors., (2009) 9 SCC 689 ).

5. Should a preliminary decree be passed in a suit for partition prior to the Court identifying the properties involved in the suit finally, is the issue that has fallen for consideration of the present case.

6. In the suit the plaintiff has sought partition of the estate and assets left behind by the deceased parents of the parties namely Late Ratan Lal Bhartia and Late Sita Devi Bhartia. The plaintiff has tabulated the estate of the two deceased in Schedules A and B to the plaint. The plaintiff has claimed that, he has reasons to believe that there are other assets belonging to the deceased parents. The plaintiff has claimed discovery and enquiry into the assets and properties of his deceased parents and partition thereof.

7. In the plaint, the plaintiff has claimed 1/6th share. The plaintiff has stated that, the original defendant No. 1 is entitled to 1/6th share, defendant Nos. 2 to 4 are entitled to 1/6th share each and the defendant Nos. 5 and 6 1/12th share each. The contesting defendants have not disputed the shares amongst the parties. The contesting defendants have however claimed that the suit schedule properties are not available to partition and in any event, the suit schedule properties not being identified as belonging to the estate, a preliminary decree cannot be passed.

8. Satya Kumar Banerjee (supra) has considered a preliminary decree passed in a suit for partition. It has considered the issue as to whether the properties to be partitioned ought to have been determined by the court before the preliminary decree was made. It has considered section 396 of the Civil Proce