IMPORTANT POINTS
(1) Partition suit – In a partition suit, a preliminary decree can be amended if an event transpires – There is no bar for drawing a fresh preliminary decree.
(2) Religious Endowment – Once an endowment is made to a Deity, ownership stands transferred to Deity.

JUDGMENT

These two writ petitions have been filed by the petitioner assailing the orders passed by the Court below after the preliminary decree was prepared on 31.10.1995 in Partition Suit No.62 of 1995 filed by plaintiff-respondent.

2. Matter under Article 227 No.4107 of 2024 assails the order dated 16.02.2024 passed by the trial Court on application 45-A2 filed in Final Decree Case No.2 of 2005 by which the application filed by plaintiff-respondent for modification of preliminary decree was allowed as well as order dated 11.03.2024 passed by District Judge, Banda in Civil Revision No.6 of 2024 by which revision filed by the defendant-petitioner against the aforesaid order was dismissed.

3. Matter under Article 227 No.3458 of 2025 has been filed assailing the order dated 29.10.2024 passed by Civil Judge (Senior Division), Banda on application (Paper No.171C-2) moved by defendant-petitioner as well as order dated 22.01.2025 passed by Additional District Judge-I, Banda in Civil Revision No.33 of 2024 dismissing the revision filed by petitioner and confirming the order of the trial Court.

4. Facts, leading to filing of present writ petitions, are that one Mahadi alias Mahadev had two daughters one Smt. Sundi and another Smt. Ramiya. Smt. Sundi became widow at an early age and had no issue. Ramiya, the real sister of Smt. Sundi, had two sons Ram Narayan and Maiyyadeen. Maiyyadeen died issueless while Ram Narayan had two sons Shiv Narayan and Garib Chandra, the present plaintiff and defendant to the suit. After the death of Ram Narayan, Garib Chandra and Shiv Narayan inherited equal share in the properties given in Schedule ‘A’, ‘B’, ‘C’ and ‘D’ of the plaint.

5. Garib Chandra, the respondent filed Original Suit No.62 of 1995 against Shiv Narayan, defendant-petitioner for partition of half share in the suit property. A preliminary decree was prepared on 31.10.1995 declaring that plaintiff and defendant each had half share in the suit property. Plaintiff-respondent, after preparation of preliminary decree, moved an application on 19.04.2005 for preparation of final decree, which was registered as Final Decree Case No.2 of 2005.

6. It was on 14.03.2018 that plaintiff-respondent moved an application 45-A2 before the Court concerned for amending the decree under Section 151 C.P.C. to the extent that Smt. Sundi had endowed part of the property, given in schedule ‘B’ of the plaint, in favour of Bhagwan Mahavir Swami through an endowment deed dated 26.02.1969. The application was allowed on 16.2.2024 and the decree was amended to the extent of the property, which was subject matter of endowment deed dated 26.02.1969. Against the said order, petitioner filed Civil Revision No.6 of 2024, which was dismissed on 11.03.2024.

7. In the meantime, petitioner filed an application, paper No.171C2, before the trial Court that the endowment deed dated 26.02.1969 was a nullity as Smt. Sundi had executed a sale deed in favour of Ram Narayan, Shiv Narayan and Garib Chandra on 26.12.1963 and, on the same day, Smt. Ramiya had executed a sale deed for her portion of house in favour of Smt. Sundi. Thus, preliminary decree could not have been amended as Smt. Sundi did not have any right to execute endowment deed dated 26.02.1969. The said application was rejected on 29.10.2024, against which, Civil Revision No.33 of 2024 was preferred by the petitioner, which has been dismissed vide order dated 22.01.2025, hence the present writ petition.

8. Counsel for the petitioner in both the writ petitions that application at the behest of plaintiff-respondent for amending the preliminary decree was not maintainable as the endowment deed of 1969 cannot be given effect to as the said fact was never placed before the trial Court when the preliminary decree was passed. He then contended that it was during the proceedings before this Court that through counter affidavit, for the first time, the fact regarding execution of sale deed by Smt. Sundi and Smt. Ramiya on 26.12.196