In partition suits, a new preliminary decree should be passed to declare amended shares before proceeding with the final decree.

The third plaintiff in O.S.No.60 of 1981 on the file of the Principal Subordinate Judge, Nagapattinam had challenged the order passed in in I.A.No.314 of 2003 in I.A.No.87 of 2002 in O.S.No.60 of 1981. I.A.No.314 of 2003 in I.A.No.87 of 2002 in O.S.No.60 of 1981 was filed by the 4th plaintiff in O.S.No.60 of 1981. The plaintiffs have filed the suit in O.S.No.60 of 1981 for partition of the plaint schedule properties. After passing of the preliminary decree, final decree proceeding was initiated by the plaintiffs in I.A.No.87 of 2002 in O.S.No.60 of 1981. While the said final decree proceeding is pending before the Principal Subordinate Judge, Nagapattinam, the 4th plaintiff alone had filed I.A.No.314 of 2003 under Order 6 Rule 17 of CPC to amend his share in the preliminary decree as 12/60 instead of 10/60 on the ground that his mother/4th defendant died, after passing of the preliminary decree in whose favour a preliminary decree for 10/60th share has been declalred. According to the petitioner/4th plaintiff in I.A.No.314 of 2003, after the death of his mother, he became entitled to 12/60th share in the suit property as one of the legal heirs of 4th defendant. The said application has been contested by one of the plaintiffs viz., Haji M.A.Ahmed Sadakathullah Maraicair/3rd plaintiff on the ground that the deceased mother of the 4th plaintiff had executed a settlement deed dated 8. 1982 conveying 15/60th share in favour of the third plaintiff. The learned Principal Subordinate Judge, Nagapattinam had allowed the application filed by the 4th plaintiff which necessitated the third plaintiff to prefer this revision.

2. The learned counsel appearing for the second respondent relying on the following decisions reported in Parashuram Rajaram-vs-Hirabai Rajaram Tiwari(AIR 1957 Bombay 59 ,Phoolchand -vs- Gopal Lal(AIR 1967 Supreme Court 1470),Hanumantappa Dyamappa Jadar-v-Mallavva (AIR 1996 Karnataka 183, Krihnabai-v-K.A.Krishnamurthy(2004)1 MLJ 91) and K.K.Kumar-v High Court of Gujarat through Registrar(AIR 2006 Supreme Court, 3559) contended that decree can be amended under Order 6 Rules 17 and 18 and under Section 151 CPC. I am of the view that unless a preliminary decree is passed in respect of 12/60th share in favour of the petitioner in IA.No.314 of 2003/4th plaintiff, the share already declared in the preliminary decree cannot be amended. It is pertinent to note that there are five plaintiffs to the suit in O.S.No.60 of 1981. The 4th plaintiff has admitted in I.A.No.314 of 2003 itself that he is one of the heirs of the deceased 4th respondent Haji Hameed Kathija Nachiar/5th plaintiff in O.S.No.60 of 1981. If it is so, then the other plaintiffs who are the other sons of 4th respondent Haji Hameed Kathija Nachiar/5th plaintiff in O.S.No.60 of 1981 are also entitled to an equal share of 12/60th each in the plaint schedule property. I am of the view that unless the petitioner/4th plaintiffs share is declared as 12/60 by way of passing of a preliminary decree, the decree already passed in O.S.No.60 of 1981 cannot be amended under Order 6 Rule 17 CPC. This settled proposition of law has been reiterated in Phoolchand -vs-Gopal Lal (AIR 1967 Supreme Court 1470), referred to above as follows:

"So far as partition suits are concerned, if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; and if there is a dispute in that behalf, the order of the Court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. However, this can only be done solong as the final decree has not been passed"

Admittedly, in this case also final decree is yet to be passed. The remedy open to the second respondent is to file a petition for passing another preliminary decree declaring his share along with other plaintiffs share and then to proceed with the final decree proceedings.

3. Th