The process of partition of immovable properties as provided in law, including the equalization of shares and the provision for payment of owelty, was emphasized by the court.

ORDER

1. This first appeal has been filed, assailing judgment and final decree of partition dated 27.05.2006 passed by Additional District Judge (Fast Track) No.4, Tonk in Civil Suit No.58/2005 titled as Ahmed Sayed & Ors. Vs. Shekh Mohd. & Ors. The property in question comprises residential house and five shops situated at Guljar Bagh, Tonk. Parties are muslim and governed by muslim personal law of succession.

2. The relevant facts, required to be noticed for purpose of present first appeal are that property in question belongs to one Shri. Mohd. Sayeed @ Kale Miya. After his death, he was survived by his three sons namely Ahmed Sayed (herein appellant No.1), Shekh Modh. Jahid (herein respondent No.1) and Mohd. Sadik (herein respondent No.2) and four daughters namely Sabatinussia (herein appellant No.2), Jarena and Jakiya (herein respondent Nos.3 and 4) and Jamilunissa (now deceased and represented through respondent Nos.5 to 9). It is undisputed and rather admitted position between parties that out of properties of father, one shop No.1 had been given to waqf during life time of father and as such this shop is not available for partition between parties. It is also not in dispute that one another shop No.5 was given to respondent defendant No.2- Mohd. Sadik with consent of all the heirs and in lieu thereof, he relinquished his claim of share in properties of father. Thus, factual position as emerged with regard to properties for partition and family members is that the suit property comprising house and three shops were to be divided among two sons and four daughters of Shri. Mohd. Sayeed @ Kale Miya.

3. According to law of succession in muslims, son gets double share to the share of daughter. The properties were equally divided in eight shares, 2/8th-2/8th share goes to two sons and 1/8th-1/8th share goes to four daughters. Since two daughters respondent-defendant Nos.3 and 4 relinquished their 1/8th-1/8th share to respondent-defendant No.1 son, therefore, he got 4/8th share. The 1/8th share of daughter Jamilunissa (represented through respondent-defendant Nos.5 to 9) was relinquished to appellant-plaintiff No.1, hence, appellant-plaintiff No.1 got 3/8th share and appellant-plaintiff No.2 got 1/8th share. Accordingly, the trial Court declared share of parties in suit property by way of passing of preliminary decree for partition dated 08.02.2006 in the manner that appellant-plaintiff No.1 would get 3/8th share; Appellant-plaintiff No.2 would get 1/8th share and respondent- defendant No.1 would get 4/8th share.

4. The judgment and preliminary decree for partition dated 08.02.2006 was accepted by all parties and same was not challenged by either of parties as such same has attained finality and there is no dispute between the parties about getting shares in suit property as allocated under the preliminary decree for partition.

5. In suit for partition or separation of share, prayer is not only for declaration of plaintiffs share in suit properties but also division of his share by metes and bounds. In suit for partition, Court at first stage decides the share of plaintiffs in suit property and resultantly, in first stage "preliminary decree", declaring shares of parties is passed under Order 20 Rule 18 CPC. The process of preparing final decree, is a consequential division of suit property by metes and bounds, in furtherance to shares declared in preliminary decree. After passing preliminary decree for partition, as per Order 26 Rule 13 CPC, the Court appoints a Commissioner to make actual and final partition of immovable property. Order 26 Rule 14 CPC provides a procedure of Commissioner that Commissioner shall, after holding an enquiry as may be necessary, divide the property into as many as shares as may be directed by preliminary decree under which Commission was issued and shall allot such shares to parties. The Commissioner prepares his report and transmit same to the Court. The Court after hearing any objection which part