PHOOLCHAND AND ANR. versus GOPAL LAL

Citation: [1967] 3 S.C.R. 153 · Decided: 10-03-1967 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
PHOOLCHAND AND ANR. 
v. 
GOPAL LAL 
March 10, 1967 
B 
(K. N. WANCHOO, R. S. BACHAWAT AND V. RAMASWAMI, JJ.] 
c 
D 
E 
F 
G 
H 
Code of Civil Procedure (Act 5 of 1908), 0.41, r. I-Preliminary 
decree in partition 
suit-Death 
of 
some 
parties-Redistribution of 
shares-No fresh preliminary decree drawn up-Appeal without copy 
of preliminary decree-If maintainable. 
Practice-If court could pass more than one preliminary decree in a 
partition suit. 
Hindu law-Agarwala Jains-Share given to 
mother 
in partition 
suit-Right, whether absolute or limited. 
Will--Circumstances showing genuineness of. 
The appellant filed a suit for partition 
against his father, mother, 
brother (the ·respondent) and the. adopted son of a predeceased brother. 
The parties were Agarwala Jains. A 
pret:minary 
decree was passed 
specifying the shares of the parties, but before the final decree could be 
pa'Ssed, the father died~, and soon afte·r, the mother also died. 
The res~ 
pondent claimed the father's share under a will executed by the father 
in his favour, and the appellant 
claimed the 
mo•her's share under a 
sale deed executed by her in his favour. 
The appellant challenged 
the 
genuineness of the will, and the respondent contended that as she was 
only a limited owner, the mother was not entitled to sell her share. The 
trial Court held in favour of'the appellant on both contentions, and passed 
an order redistributing the shares, but did not prepare a fresh prelimi-
nary decree. The respondent appealed to the High Court but was not in 
a position to file a copy of the decree with the appeal. Even when time 
was granted by the High Court and the respondent moved the trial Court 
for framing a formal decree, the trial Court refmed to do •o. The High 
Court disposed of the appeal boldin~ that (i) the appeal was maintain· 
able without a copy of the decree; (1i) the varying of the share., by the 
trial Court, in the preliminary decree already passed by it was " decree 
in the 
ci'rcumstances 
of the present case, and the respondent could 
appeal from it; (iii) the mother was not entitled to sell her share and so 
the •ale in favour of the 
appellant was 
invalid; and 
(iv) the will in 
favour of the respondent was genuine. 
In appeal to this Court 
HELD: (i) Normally a copy of the decree 
must 
accompany 
~e 
memorandum of appeal. 
But the defect in the filing of the appeal 
m 
the present case was not due to any fault of the respondent and it could 
not be held that he •hould be deprived of his righ• of appeal, simply be-
came the trial Court did not do its duty. (157 D, HJ 
!agat Dhish Bhargava v. Jawahar Lal Bhargava, (1961] 2 S.C.R. 918, 
referred to. 
(ii) So far as partition suits arc concerned, if an event happens after 
the preliminary decree and before a final deccee is passed, and a change 
in the shares is necessitated,· the trial court can and should pass a second 
L 4 Sup. C.1./67-11 
154 
SUPREME COURT REPORTS 
[1967] 3~.c:R. 
preliminary decree correcting the shares; and, if there is a dispute 
in 
that behalf the order of the court deciding that dispute and making a 
variation in the shares specified in the preliminary decree already passed 
is a decree in itself which would be hable to appeal. A partition suit 
is not finally disposed of till the final decree is passed and the court has 
jurisdiction to decide all disputes that may arise due to the death of 
some of the pa·rties after the preliminary decree and before the passing 
· of the final decree. There is nothing in the Civil Procedure Code which 
prohibits the passing of more than one preliminary decree in a partition 
suit, if circumstances justify it and if it is convenient and advantageous 
to do so. [158 E, F, H; 159 A, D-E] 
Kasi v. Ramanathan 
Chettiar, 
[1947] 2 M.L.J. 523, 
Raja Peary 
Mohan v. Manohar, (1923) 27 Cal. W.N. 989 and Parshuram '"· Hira-
.bai, A.I.R. 1957 Born. 59, approved. 
Bharat Indu v. Yakub Hasan, (1913) I.LR. 35 All. 159, Kedernath 
v. Pattu Lal, I.L.R. [1954] Luck, 557 and loti Parshad v. Ganeshi Lal, 
AI.R. 1961 Punj. 120, overruled. 
(iii) In the absence of a custom to the contrary a Jain widow takes a 
limited interest in her husband's estate similar to the widow's estate. A 
custom .. however, to the contrary has been proved among Agarwala Jains 
that the widow takes an absolute estate in the self-acquired property of 
her husband, with full powers of 
alienation. But there is no such 
custom entitling her to an absolute 

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