A partition suit concludes with the final decree, and parties cannot seek modification of shares based on subsequent legislative changes after the final decree is passed.

ORDER :

Challenging the impugned order rejecting the applications filed under Section 152 of CPC to amend the preliminary decree in O.S.No.310 of 2000 dated 23.04.2002 and to hold that the first plaintiff/first respondent is entitled to 1/4^th share in the suit properties and the defendants 2 to 4/petitioners 2 to 4 are jointly entitled to 1/4^th share.

2. Brief background of the case are as follows:

2.a. The first plaintiff then was a minor represented by his mother second plaintiff have filed a suit for partition claiming ½ share in the suit properties stating the suit properties are ancestral properties of one Rama Kounder, S/o.Perumal Kounder. The said Rama Kounder got four sons, viz., Srinivasan, Aburvakounder, Arumugam and Balakrishna. The plaintiffs have claimed oral partition in the year 1987 in which the suit properties have been allotted to the first petitioner. The respondents have also stated that the properties items 1 to 9 had fallen to the share of the first petitioner. Therefore, the 1^st plaintiff as a co-parcener claimed ½ share and first defendant got ½ share obtained preliminary decree for partition of ½ share in the suit properties. Based on the preliminary decree, the respondents have filed application in I.A.No.40 of 2003 for passing of final decree. Accordingly, final decree dated 30.01.2010 was passed. Thereafter, the plaintiffs have filed a petition for delivery of the properties in E.P.No.41 of 2022.

2.b. According to the revision petitioners, plaintiffs are not entitled to ½ share in the suit properties as per the judgment of the Hon'ble Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma and others, wherein, the daughters are recognised as co-parceners along with sons and the said law is retrospective effect viz., from 1956 when the Hindu Succession Act came into force. Therefore, as per the above judgment, the petitioners are equally entitled to a share along with their brother/first plaintiff. Therefore, the first plaintiff is entitled to only ¼ share in the suit properties, as the defendants 2 to 4 are each entitled to ¼ share. Thus, the application was filed seeking to amend the preliminary decree in O.S.No.310 of 2000 dated 23.04.2002 and to hold that the first plaintiff/first respondent is entitled to 1/4^th share in the suit properties and the defendants 2 to 4/petitioners 2 to 4 are jointly entitled to 1/4^th share. The said application was dismissed. Challenging the order, the present revision.

3. This Court in order to assist the Court, appointed Mr.P.Valliappan, learned Senior Counsel and Mr.Sharath Chandran, learned counsel as amici curiae. According to them, preliminary decree declares rights or shares to the parties in the partition. It is an order declaring the shares of parties is interim in character. It is is for this reason that the Court is empowered to pass any number of preliminary decrees prior to passing of a final decree in the suit. Both the learned counsels submitted that once the final decree has been passed, the suit will come to an end for all practical purpose.

4. The final decree has been passed containing the character of the partition effected by a decree of the Court, therefore, according to them, the petitioners cannot seek amendment of preliminary decree for enlargement of the shares after the final decree has been passed dividing the properties by metes and bounds and the suit will come to an end. In support of their submissions, they also relied upon the judgment as follows:

i. Renu Devi vs. Mahendra Singh reported in 2003 10 SCC 200.

ii. Thiruvengadathamaiah ILR (1912) 35 Mad 26

iii. Jotindra Mohan Tagore vs. Bejoy Chand Mahtab reported in 1904 32 Cal.483

iv. Pandiri Satyanandam v. Paramkusam Nammayya reported in AIR 1938 Mad 307

v. Board of Revenue, Madras v. Moideen Rowther reported in AIR 1956 Mad 207 (FB).

vi. Mool Chand v. Director, Consolidation reported in (1995) 5 SCC 631

vii. S.Sai Reddy vs. S.Narayana Reddy reported in (1991) 3 SCC 647.

viii. Vineeta Sharma