1. The present application under Article 227 of the Constitution is at the instance of original plaintiff No.2 of Regular Civil Suit No.4400 of 1987 instituted in the Court of City Civil Judge at Ahmedabad challenging the legality and validity of order dated 10/03/2004 passed by the Aux. Cham. Judge, Court No.16, Ahmedabad below Exh.121 in Reference No.6 of 1998 in Civil Suit No.4400 of 1987.

2. The question of law which falls for my consideration in this application under Article 227 is as under:

“Whether the Court in exercise of powers under Order 1, Rule 10 of Clause (2) of Code of Civil Procedure can implead a party in a suit for partition of property after preliminary decree for partition is passed and before the final decree is drawn and further whether such a party impleaded after the preliminary decree can be joined as co-plaintiffs?”

3. The facts relevant for the purpose of deciding this petition can be summarized as under:

4. Petitioner herein preferred Civil Suit No.4400 of 1987 as a power of attorney of her late father, Ishakbhai Abdul Kadarbhai Rupawala for partition of undivided properties in metes and bounds as per the Shia Law and also for rendition of the accounts. The case of the petitioner as a power of attorney of original plaintiff-her late father Ishakbhai Abdul Kadarbhai Rupawala, is that the properties detailed in paragraph No.13 of plaint are in the joint names of four brothers of the original plaintiff and the same have not still been divided as per the provisions contained in Section 77 of the Mahomedan Law. It was prayed that the plaintiff has 7/32 share in the joint property shown in paragraph No.13 of the plaint. It was prayed that the residential property bearing City Survey No.370 in Saifee Maholla, Astodia, Ahmedabad may be partitioned equally in metes and bounds as per the provisions contained in Section 77 of the Mahomedan Law.

5. The City Civil Court, Ahmedabad rejected the Regular Civil Suit and ultimately vide judgment, order and decree allowed the suit and declared that the original plaintiff is entitled 7/32 share in the properties mentioned in paragraph No.13 of the plaintiff. The operative part of the order is reproduced herein below:

“The plaintiff is entitled to 7/32 share in the properties mentioned in para 13 of plaint, exh.1, and therefore the matter be sent to the Commissioner for Taking Accounts for effecting partition by metes and bounds and to put the plaintiff in her respective possession, but if it is not possible or convenient, then to carry out partition as per provisions of the Partition Act, The Commissioner for taking Accounts is also directed to take accounts of the income of rented property from the defendants Nos.1 and 2.

The preliminary decree in terms of the above order shall be drawn up.”

6. It appears from the record and as pleaded by the petitioner that during the pendency of Regular Civil Suit, original plaintiff Ishakbhai father of the petitioner by way of an oral gift decided to give his share in the property to the petitioner. Such oral gift which was made in the past was confirmed in the form of a declaration made before the Executive Magistrate, Ahmedabad on 27/08/1990. Record also reveals that the deed of declaration of gift came to be produced in the suit at Exh.74 and as original plaintiff – Ishakbhai passed away the names of the petitioner and her mother – Rababben, widow of deceased – Ishakbhai were substituted and they were joined as plaintiffs.

7. It deserves to be noted that Ishakbhai during his lifetime married for the second time with Rubabben, defendant No.2 and out of the said wedlock with Rubabben, the present petitioner was born. Late Ishakbhai's first wife passed away and out of the wedlock with the first wife, Ishakbhai had two daughters Amina and Tara.

8. After the preliminary decree was ordered to be drawn determining the share of the original plaintiff late Ishakbhai, the two daughters of late Ishakbhai from the first marriage p