Phoolchand & ANR Vs. Gopal Lal
 INSC 61 (10 March 1967)
10/03/1967 WANCHOO, K.N.
CITATION: 1967 AIR 1470 1967 SCR (3) 153
CITATOR INFO :
RF 1972 SC 414 (32)
Code of Civil Procedure (Act 5 of 1908),
O.41, r. 1- 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 preliminary decree was
passed specifying the shares of the parties, but before the final decree could
be passed, the father died., and soon after, the mother also died. The
respondent claimed the father's share under a will executed by the father in
his favour, and the appellant claimed the mother'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 preliminary 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 refused to
do so. The High Court disposed of the appeal holding that (i) the appeal was
maintainable without a copy of the decree; (ii) the varying of the share,, by
the trial Court, in the preliminary decree already passed by it was a decree in
the circumstances of the present case, and the respondent could appeal from it;
(iii) the mother was not entitled to sell her share and so the sale in favour
of the appellant was invalid; and (iv) the will in favour of the respondent was
In appeal to this Court.
HELD:(i) Normally a copy of the decree must
accompany the memorandum of appeal. But the defect in the filing of the appeal
in the present case was not due to any fault of the respondent and it could not
be held that be should be deprived of his right of appeal, simply because the
trial Court did not do its duty. [157 D, H] Jagat Dhish Bhargava v. Jawahar Lal
Bhargava,  2 S.C.R. 918, referred to.
(ii) So far as partition suits are concerned,
if an event happens after the preliminary decree and before a final decree is
passed, and a change in the shares is necessitated, the trial court can and
should pass a second Sup. C.1.167-11 154 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 liable
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 Parties 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,  2 M.L.J. 523,
Raja Peary Mohan v. Manohar, (1923) 27 Cal. W.N. 989 and Parshuram v. Hirabai,
A.I.R. 1957 Bom. 59, approved.
Bharat Indu v. Yakub Hasan, (1913) I.L.R. 35
All. 159, Kedernath v. Pattu Lal, I.L.R.  Luck, 557 and Joti Parshad v.
Ganeshi Lal, A.I.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
Agarwala Jains that the widow takes an absolute estate in the required property
of her husband, with full powers of alienation. But there is no such custom
entitling her to an absolute estate in ancestral property. [160 D-E] In the
present case, the share allotted to the mother by the preliminary decree was
out of ancestral property, and therefore, the appellant could not take
advantage of the sale of that share by the mother, and it must descend equally
to the three surviving parties namely, the appellant, the -respondent and the
adopted son of the deceased brother. [160 E-F] Tulsiram Khirchand v. Chunnilal
Panchamsao Parwar, A.I.R.
1938 Nag. 391, referred to.
(iv) The will was duly executed by the father
in favour of the respondent. It was genuine, and the testator was competent to
will away not only his self-acquired properties, but also the share he got out
of the joint family property by severance of status and specification of
shares. [162 C-F] The will was executed after the partition suit had been filed
and after a preliminary decree, by which shares were allotted to the members of
the family, had been passed.
Though the testator was 70 years old at the
time of the execution of the will -and though the respondent took a prominent
part in its execution, the testator lived for 7 years after its execution and
he was mentally and physically competent at the time of its execution. Further,
the will was registered. The will was also natural, because,, (a) the testator
was disgusted with the conduct of the appellant; (b) he was pleased with that
of the respondent;
(c) he did not give any share to the adopted
son of his deceased son, because, the adopted son was the natural son of the
appellant; and (d) he did not provide for his wife for she had already been
allotted one-fifth share by the trial Court's preliminary decree. [161 C-H; 162
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1313 of 1966.
155 Appeal from the judgment and decree dated
April 29, 1964 of the Rajasthan High Court in D. B. Civil Regular First Appeal
No. 118 of 1961.
J. P. Goyal and B. P. Jha, for the
B. P. Maheshwari for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal on a certificate granted by the Rajasthan High
Court and arises in the following circumstances' Phool Chand appellant had
filed a suit in 1937 for partition of his one-fifth share in certain properties
mentioned in the schedule to the plaint. The defendants to the suit were
Sohanlal, father of the appellant, Gopal Lal, brother of the appellant, and
Rajmal, minor adopted son of Gokalchand (deceased) who was another brother of
the appellant and Smt. Gulab Bai, mother of the appellant. There were two other
defendants with whom we are not concerned now. The suit was resisted by the
defendants and a large number of pleas were raised with which we are also not concerned
now. That suit was fought right upto the Mahkma Khas (Privy Council) of the
former State of Jaipur and a preliminary decree for partition was passed
specifying the shares of the appellant and the four defendants mentioned above
on August 1, 1942. Before, however, a final decree could be passed on the
report of the Commissioner in terms of the preliminary decree, Sohan Lal died
on May 13, 1947 and soon after his widow, Smt. Gulab Bai also died on November
22, 1947. Disputes seem to have arisen about the shares allotted to these two
persons. It appears that Gopal Lal claimed that his father Sohan Lal had made a
will in his favour on June 2, 1940, according to which he bequeathed all his
property to Gopal Lal. Phool Chand challenged the genuineness of the will. As
to the share of Smt. Gulab Bai Phool Chand claimed that she had executed a sale
deed dated October 19, 1947 and registered on January 10, 1948 by which she
sold all her share in movable and immovable properties which came to her by the
decree of August 1, 1942 to Phool Chand. Gopal Lal, however, contended that
Smt. Gulab Bai was not entitled to sell the share which she got in the
ancestral property as she was a limited owner and therefore her share must be
held to have devolved on Gopal La], Phool Chand and Rajmal. These disputes were
brought before the court soon after the deaths of Sohan Lal and Smt. Gulab Bai,
but nothing seems to have been done for many years. It was only on July 12,
1961 that the trial court decided the disputes with respect to the shares of
Sohan Lal and Smt.
Gulab Bai. It came to the conclusion that the
will had not been proved. It also upheld, the sale deed in favour of Phool
Chand appellant. In consequence the trial court redistributed the shares
indicated in the preliminary 156 decree of August 1, 1942. By this
re-distribution, the share of Phool Chand was increased from one-fifth to one-
half; the share of Gopal Lal was increased from one-fifth to one-fourth, and
the share of Rajmal was increased from one- fifth to one-fourth. The trial
court however did not prepare another formal 'preliminary decree on the basis
of this re-distribution of shares.
Thereupon Gopal Lal went in appeal to the
High Court and wanted stay of proceedings relating to preparation of final
decree. In these proceedings Phool Chand objected that the appeal was not
maintainable as no decree had been prepared by the trial court and no copy of
the decree had been filed along with the memorandum of appeal. The High Court
thereupon passed an order adjourning the matter to enable Gopal Lal to move the
trial court to draw up a formal decree. Gopal Lal thereafter moved the trial
court for amending the preliminary decree. But that application was rejected in
September 1962. Thus the appeal of Gopal Lal in the High Court proceeded
without a copy of the decree being on the record.
A preliminary objection was raised in the
High Court on behalf of Phool Chand appellant on the date of hearing that as no
copy of the decree had been filed along with the memorandum of appeal, the
appeal was not maintainable. It was also objected that in any case there could
be no second preliminary decree and that the order of the trial court varying
the shares in the preliminary decree could be appealed from, if at all, after
the final decree had been prepared. The High Court repelled both these
contentions and held that the order of July 12, 1961 varying specification of
shares in the preliminary decree passed on August 1, 1942 was a decree in the
facts and circumstances of this case and Gopal Lal could appeal from it. The
High Court further held that as the trial court had refused to frame a formal
decree on the basis of this variation of shares it was not possible for Gopal
Lal to file a copy thereof with the memorandum of appeal, but that would not
take away the right of Gopal Lal to appeal.
The next point raised in the High Court was
that the trial court was wrong in holding that under the Jain custom a widow
had the same right as a male co-parcener in ancestral property coming to her
share on partition. It was therefore contended that the sale deed by Smt. Gulab
Bai in favour of Phool Chand appellant was invalid and her one-fifth share
descended on the remaining three defendants to the suit, namely, Phool Chand,
Gopal Lal and Rajmal. The High Court accepted the contention and held that Smt.
Gulab Bai being a limited owner could not sell the property. The third
contention raised before the High Court was that the will of Sohan Lal in
favour of Gopal Lal was genuine and the trial court's finding that it was not
proved was. not correct.
The 157 High Court accepted this contention
also. The result was that the High Court redistributed the shares and declared
that Phool Chand was entitled to four-fifteenths share of the property, Gopal Lal
to seven-fifteenths share and Rajmal to four-fifteenths share. The High Court
decree being one of variance, it (,ranted certificate to Phool Chand to appeal
to this Court.
Learned counsel for Phool Chand appellant has
attacked the findings of the High Court on all the three points. He first
contends that as a copy of the decree was not filed along with the memorandum
of appeal the appeal was incompetent and relies in this connection on the
decision of this Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava(1). In
that case it was observed that every memorandum of appeal has to be accompanied
by a copy of the decree appealed from, that this requirement of O. XLI r. 1 of
the Code of Civil Procedure is mandatory and in the absence of a copy of the
decree the filing of the appeal would be incomplete, defective and incompetent.
That no doubt is the correct position in law; but as was pointed out in that
case, there may be circumstances where an appeal may be competent even though a
copy of the decree may not have been filed along with the memorandum of appeal.
One such exceptional case was dealt with in Jagat Dhish Bhargava's case(1). We
consider that the present case is another exceptional case where in the absence
of the copy of decree the appeal could be maintained. We have already indicated
that the trial court did not frame a formal decree when it varied the shares
and naturally Gopal Lal was not in a position to -file a copy of the decree
when he presented the memorandum of appeal to the High Court. Even when time
was granted by the High Court and Gopal Lal moved the trial court for framing a
formal decree, the trial court refused to do so. In those circumstances it was
impossible for Gopal Lal to file a copy of the formal decree. It is unfortunate
that when the matter was brought to the know- ledge of the High Court it did
not order the trial court to frame a formal decree; if it had done so, the
appellant could have obtained a copy of the formal decree and filed it and the
defect would have been cured. We do not think it was necessary for Gopal La] to
file a revision against the order of the trial court refusing to frame a formal
decree, for Gopal Lal's appeal was pending in the High Court and the High Court
should and could have directed the trial court in that appeal to frame a decree
to enable Gopal Lal to file it and cure the defect. In such circumstances we
fail to see what more Gopal Lal could have done in the matter of filing a copy
of the decree. The fact that the trial court refused to frame a formal decree
cannot in law deprive Gopal Lal of his right to appeal. The defect in the
filing of the appeal in the circumstances was not due to any fault of Gopal Lal
and it cannot be held that he should be (1)  2 S.C.R. 918.
158 deprived of the right to appeal, if he
had it, simply because the court did not do its duty. We therefore agree with
the High Court that in the circumstances the absence of the copy of decree
would not deprive Gopal Lal of his right to appeal.
The next contention is that there cannot be
two preliminary decrees and therefore when the trial court varied the shares as
indicated in the preliminary decree of August 1, 1942 there was no fresh
preliminary decree passed by the trial court. It is not disputed that in a
partition suit the court has jurisdiction to amend the shares suitably even if
the preliminary decree has been passed if some member of the family to whom an
allotment was made in the preliminary decree dies thereafter : (see Parshuram
v. Hirabai"1'). So the trial court was justified in amending the shares on
the deaths of Sohan Lal and Smt. Gulab Bai. The only question then is whether
this amendment amounted to a fresh decree.
The Allahabad High Court in Bharat Indo v.
Yakub Hassan ( 2 ) the Oudh Chief Court in Kedemath v. Pattu Lal ( 3 ) , and
the Punjab High Court in Joti Parshad v. Ganeshi Lal ( 4 ) seem to take the
view that there can be only one preliminary decree and one final decree
thereafter. The Madras, Bombay and Calcutta High Courts seem to take the view that
there can be more than one preliminary decree : (see Kasi v. V. Ramanathan
Chettiar(5) Raja Peary Mohan v. Manohar(6), and Parshuram v. Hirabai.
We are of opinion that there is nothing in
the Code of Civil Procedure which prohibits the passing of more than one
preliminary decree if circumstances justify the same and that it may be
necessary to do so particularly in partition suits when after the preliminary
decree some parties die and shares of other parties are thereby augmented. We
have already said that it is not disputed that in partition suits the court can
do so even after the preliminary decree is passed. It would in our opinion be
convenient to the court and advantageous to the parties, specially in partition
suits, to have disputed rights finally settled and specification of shares in
the preliminary decree varied before a final decree is prepared. If this is
done, there is a clear determination of the rights of parties to the suit on
the question in dispute and we see no difficulty in holding that in such cases
there is a decree deciding these disputed rights; if so, there is no reason why
a second preliminary decree correcting the shares in a partition suit cannot be
passed by the court. So far therefore as partition suits are concerned we have no
doubt that if an event transpires after the preliminary decree which
necessitates a change in shares, the court can and should (1) A.I.R. 1957 Bom.
(3) (1945) I.L.R. 29 Luck, 557.
(5)  II Mad. L.J. 523.
(2) (1913) I.L.R. 35 All. 159.
(4) A.I.R. 1961 Puni. 120.
(6)  27 Cal. W.N. 989.
159 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. We should however like to point out that what
we are saying must be confined to partition suits, for we are not concerned in
the present appeal with other kinds of suits in which also preliminary and
final decrees are passed. There is no prohibition in the Code of Civil
Procedure against passing a second preliminary decree in such circumstances and
we do not see why we should rule out a second preliminary decree in such
circumstances only on the ground that the Code of Civil Procedure does not
contemplate such a possibility. In any case if two views are possible-and
obviously this is so because the High Courts have differed on the question-we
would prefer the view taken by the High Courts which hold that a second
preliminary decree can be passed, particularly in partition suits where parties
have died after the preliminary decree and shares specified in the preliminary
decree have to be adjusted. We see no reason why in such a case if there is
dispute, it should not be decided by the court which passed the preliminary
decree, for it must not be forgotten that the suit is not over till the final
decree is passed and the court has jurisdiction to decide all disputes that may
arise after the preliminary decree, particularly in a partition suit due to
deaths of some of the parties. Whether there can be more than one final decree
does not arise in the present appeal and on that we express no opinion. We
therefore hold that in the circumstances of this case it was open to the court
to draw up a fresh preliminary decree as two of the parties had died after the
preliminary decree and before the final decree was passed. Further as there was
dispute between the surviving parties as to devolution of the shares of the
parties who were dead and that dispute was decided by the trial court in the
present case and thereafter the preliminary decree al- ready passed was
amended, the decision amounted to a decree and was liable to appeal. We
therefore agree with the view taken by the High Court that in such
circumstances a second preliminary decree can be passed in partition suits by
which the shares allotted in the preliminary decree already passed can be
amended and if there is dispute between surviving parties in that behalf and
that dispute is decided the decision amounts to a decree. We should however
like to make it clear that this can only be done so long as the final decree
has not been passed. We therefore reject this contention of the appellant.
This brings us to the question whether the
appellant was en- titled to the share of Smt. Gulab Bai by virtue of the sale
deed dated October 19, 1947 in his favour. Now it must be remembered that we
are concerned in the present case with only the sale of the share allotted to
Smt. Gulab Bai out of the ancestral property 160 by the preliminary decree
passed on August 1, 1942. The trial :-court held that High Courts had
recognised the custom amongst Jain-Agarwals that the rights of Jain widows were
absolute and ,not in the nature of a limited owner. It relied on Tulsiram
Khirchand v. Chunnilal Panchamsao Parwar(1). The High Court however held
otherwise and we are of opinion that the High Court was right. It is true that
in Tulsiram's case(1), the Nagpur High Court stated that "the widow takes
an absolute estate among Jains in general and not merely in some particular
sub-sects". The two cases relied on in Tulsiram's case(1) were cases of
non-ancestral 'property, namely, (i) Mt. Sano v. Puran Singh(2) and (ii)
Trimbakdas v. Mt. Mathabai(3). It is not clear whether the property in
Tulsiram's case(1) was ancestral or non- ancestral. In any case we cannot read
Tulsiram's case(1) as laying down that a Jain widow has absolute rights even in
the share she gets on partition out of ancestral property.
We may in this connection refer to Mulla's
Hindu Law, 13th Edn. p. 585, para 616 where it is stated that "in the
absence of 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 in several ,cases that amongst Agarwala Jains the widow takes
an absolute estate in the self-acquired property of her husband and that she
has full power of alienation in respect of such property. But there is no
custom which entitled her to an absolute estate in ancestral property left by
her husband. In the latter case she takes only a widow's estate". This
appears to us to be a correct statement of the law. We are concerned in the
present appeal with the share which Smt. Gulab Bai got out of the ancestral
property by the preliminary decree of August 1, 1942; she obviously had only a
limited estate or a widow's estate in that share and not an absolute estate.
Therefore she could not sell it in the manner in which she sold to the appellant.
The High Court therefore was right in holding that the appellant could not take
advantage of the sale of the share of the widow and it must descend on the
remaining three surviving parties equally, namely, Phool Chand, Gopal Lal and
Rajmal. The contention therefore on this head also fails.
Then we come to the question whether the will
by Sohan Lal in favour of Gopal La] was genuine. We have already indicated that
the trial court held that it was not, while the High Court was of opinion that
it was genuine. The trial court based its finding mainly on some inconsistency
in the statements made by Laxmichand, an attesting witness, on two different
occasions. It Seems that in this suit Laxmichand duly proved the will but on an
earlier occasion he had stated that he had not attested the will. There was (1)
A.I.R. 1938 Nag. 391. (2) A.I.R. 1925 Nag..174.
(3) A.I.R. 1930 Nag. 225.
161 another attesting witness who also was
produced, namely, Chhotey Lal, whose evidence did not suffer from any
infirmity. Besides that Basanti Lal, the scribe of the will, was also produced,
though he was not present at the time of the execution of the will. His
evidence is that he prepared the draft of the will on the instruction of Sohan
Lal and handed over the written document either to Gopal Lal or to Sohan Lal.
Finally there was the statement of Gopal Lal to prove due execution of the will
for he was present when it was executed though he was not an attesting witness.
Thus except for the inconsistency in the two
statements of Laxmichand the evidence of the due execution of the will was
But it is urged that Gopal Lal in whose
favour the will was made had taken a prominent part in its execution and Sohan
Lal was an old man of about 70 years when the will was executed and therefore
we should require strict proof of the due execution of the will. There are
several circumstances which in our opinion clearly show that the will was duly
executed by Sohan Lal in favour of Gopal Lal.
Firstly, Phool Chand was obviously a thorn in
the side of the father and had dragged him into litigation. The will says that
Phool Chand separated from the father long before and picked up quarrels with
him. It further says that Phool Chand had no regard for his duty as a son and
had been behaving with the testator in a most improper and shameful way. It
goes on to say that the testator was fed up with the improper behaviour of
Phool Chand. The testator then says in the will that contrary to it, Gopal Lal
lived with him, served him and was obedient to him and he was impressed with
the services of Gopal Lal. He therefore wanted his property to go to Gopal Lal
and was making the will in order that Gopal Lal may not be put to any trouble
after his death and might live comfortably. The will therefore appears to be a
very natural will in the circumstances. Sohan Lal obviously did not provide for
his wife for she had been allotted one-fifth share in the -property already by
the trial court's preliminary decree. As for Rajmal minor, it appears that he was
the natural son of Phool Chand and there was dispute whether he had been
adopted by Gokalchand's widow, though the dispute was eventually settled in
favour of Rajmal minor by the court. In these circumstances we would not expect
Sohan Lal to make any provision for Rajmal minor either who had got one-fifth
share on the basis of adoption. The will therefore appears to us to be very
natural and the fact that Gopal La] took part in the execution has under the
circumstances no significance. It is true that Sohan Lal was about 70 years old
when the will was executed. But he lived almost seven years after the execution
of the will and it is no one's case that he was in any way mentally or
physically incompetent to 162 make the will when he did so in 1940. It may be
added that the will was later registered also, though the Registrar has not
been examined as a witness. Finally there is the circumstance that the
appellant knew about the will as far back as March 1941 but he never seems to
have talked to his father Sohan Lal about it. In these circumstances we agree
with the High Court that the due execution of the will has been proved.
The last point that had been urged on behalf
of the appellant is that Gopal Lal was not entitled to any movable or immovable
ancestral property by virtue of the will, as a Hindu cannot will away joint
family property. We are of opinion that there is nothing in this contention.
The present suit had already been filed by the appellant in 1937 and
immediately on the filing of the suit there was severance of status among the
members of the joint Hindu family, even if Phool Chand had not separated
earlier as stated by Sohan Lal in the will. Further a preliminary decree had
also been passed by the trial court in April 1938 by which various shares were
allotted to various members of the family. In these circumstances Sohan Lal was
perfectly competent to will away the share he got out of the joint family
property and that is what he did. He has stated in the will that Gopal Lal
would be the rightful owner of his self-acquired immovable property. He further
stated that Gopal Lal would be the rightful owner of his share in the ancestral
property and finally he stated that Gopal Lal would be the rightful owner of
all of his articles, i.e., jewellery, ornaments, clothes, utensils and other
domestic articles. The last clause relating to movable property clearly refers
both to the share that Sohan Lal got in the movable property by severance of
status and specification of shares in the preliminary decree and to any
self-acquired movable property. There is therefore no force in this contention.
The appeal therefore fails and is hereby
dismissed with costs.