Haji M.A.Ahmed Sadakathullah Maraicair v. A.Mohideen Abdul Khader2. Haji A.Hassan Abdul Khader Maraicair3. Sayeed Aisha Fathima Nachiar4

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:05.12.2007CORAMTHE HONOURABLE Mr. JUSTICE A.C.ARUMUGAPERUMAL ADITYANCivil Revision Petition (NPD) No.2490 of 2004andC.M.P.No.18729 of 2004Haji M.A.Ahmed Sadakathullah Maraicair.... Petitioner .Vs.1. A.Mohideen Abdul Khader2. Haji A.Hassan Abdul Khader Maraicair3. Sayeed Aisha Fathima Nachiar4. Hafsa Ammal5. Canara Banj, Nagapattinam represented by its Branch Manager Neela East Street, Nagore Nagapattinam Town, Taluk and Munsiff6. Indian Bank, Nagapattinam represented by its Branch Manager Nethaji Road, Nagapattinam Town, Taluk7. State Bank of India, Nagapattinam represented by its Branch Manager Neela South Street, Nagapattinam Town8. Ummal Salma Nachiar9. Mohammed Zackria Maraicair10.Hameed Fathima Nachiar11.Jager Sadhik Maraicair12.Abul Hassan Sadhuli Maraicair13.Jeyanambu Nachiar14.Hajira Julaika Nachiar15.Sayeed Sultani Nachiar16.Khader Mohideen MaraicairSince the respondents 5,6 and 7 are consideredas unnecessary parties, no notice need be given to the said respondents.. RespondentsCivil Revision Petition is filed under Section 115 of C.P.C. againstthe dismissal order dated 8.12.2003 on the file of Principal SubordinateCourt, Nagapattinam made in I.A.No.314 of 2003 in I.A.No.87 of 2002 inO.S.No.60 of 1981. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : : Mr.Jemmy VasanthFor respondents : : Mr.Srinath Sridevan,Advocate-R1 Mr.P.Valliappan,Advocate-R2 R5 to R7-Given up RR3,4, 8 to 16 notice servedO R D E R The third plaintiff in O.S.No.60 of 1981 on the file of thePrincipal Subordinate Judge, Nagapattinam had challenged the order passedin 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 bythe 4th plaintiff in O.S.No.60 of 1981. The plaintiffs have filed the suitin O.S.No.60 of 1981 for partition of the plaint schedule properties.After passing of the preliminary decree, final decree proceeding wasinitiated 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 PrincipalSubordinate Judge, Nagapattinam, the 4th plaintiff alone had filedI.A.No.314 of 2003 under Order 6 Rule 17 of CPC to amend his share in thepreliminary decree as 12/60 instead of 10/60 on the ground that hismother/4th defendant died, after passing of the preliminary decree inwhose 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 thedeath of his mother, he became entitled to 12/60th share in the suitproperty as one of the legal heirs of 4th defendant. The said applicationhas been contested by one of the plaintiffs viz., Haji M.A.AhmedSadakathullah Maraicair/3rd plaintiff on the ground that the deceasedmother of the 4th plaintiff had executed a settlement deed dated 9.8.1982conveying 15/60th share in favour of the third plaintiff. The learnedPrincipal Subordinate Judge, Nagapattinam had allowed the applicationfiled by the 4th plaintiff which necessitated the third plaintiff to preferthis revision.2. The learned counsel appearing for the second respondent relying onthe following decisions reported in Parashuram Rajaram-vs-Hirabai RajaramTiwari(AIR 1957 Bombay 59 ,Phoolchand -vs- Gopal Lal(AIR 1967 SupremeCourt 1470),Hanumantappa Dyamappa Jadar-v- Mallavva (AIR 1996 Karnataka183, Krihnabai-v- K.A.Krishnamurthy(2004)1 MLJ 91) and K.K.Kumar-v HighCourt of Gujarat through Registrar(AIR 2006 Supreme Court, 3559)contended that decree can be amended under Order 6 Rules 17 and 18 andunder Section 151 CPC. I am of the view that unless a preliminary decreeis passed in respect of 12/60th share in favour of the petitioner inIA.No.314 of 2003/4th plaintiff, the share already declared in thepreliminary decree cannot be amended. It is pertinent to note that thereare five plaintiffs to the suit in O.S.No.60 of 1981. The 4th plaintiff has https://hcservices.ecourts.gov.in/hcservices/ admitted in I.A.No.314 of 2003 itself that he is one of the heirs of thedeceased 4th respondent Haji Hameed Kathija Nachiar/5th plaintiff inO.S.No.60 of 1981.If it is so, then the other plaintiffs who are the othersons of 4th respondent Haji Hameed Kathija Nachiar/5th plaintiff inO.S.No.60 of 1981 are also entitled to an equal share of 12/60th each inthe plaint schedule property. I am of the view that unless thepetitioner/4th plaintiff's share is declared as 12/60 by way of passingof a preliminary decree, the decree already passed in O.S.No.60 of 1981cannot be amended under Order 6 Rule 17 CPC. This settled proposition oflaw has been reiterated in Phoolchand -vs- Gopal Lal(AIR 1967 SupremeCourt 1470),referred to above as follows:" So far as partition suits are concerned, if an eventtranspires after the preliminary decree whichnecessitates a change in shares, the Court can andshould do so; and if there is a dispute in that behalf,the order of the Court deciding that dispute and makingvariation in shares specified in the preliminary decreealready passed is a decree in itself which would beliable to appeal. However, this can only be donesolong as the final decree has not been passed"Admittedly, in this case also final decree is yet to be passed. Theremedy open to the second respondent is to file a petition for passinganother preliminary decree declaring his share along with otherplaintiffs' share and then to proceed with the final decree proceedings.3. The learned counsel appearing for the second respondent relying ona decision reported in Parashuram Rajaram-vs-Hirabai Rajaram Tiwari(AIR1957 Bombay 59 (V44 C 25 Feb),referred to above, would contend that apreliminary decree in a suit for partition can be amended. The ratiodecidenti in the said suit is that after passing a preliminary decree forpartition, the plaintiff applied to the Court on the ground of hisfather's death, his share was augmented and the share which was 1/8th wasincreased to 1/7th. The said application was rejected and in an appeal itwas held that the plaintiff would not be required to pay upon the footingof his augmented share. No question of paying ad valorem court-fees arose.It was only when a decree was passed in his favour increasing his sharefrom 1/8th to 1/7th the plaintiff would be called upon to pay the amountof stamp duty upon the difference between his increased share which was1/7th and the 1/8th share which was awarded to him by the preliminarydecree. 4. The learned counsel for the second respondent at this juncturerelying on a decision reported in Nanja Naicken-v- Rangammal(AIR 1972Madras 384) and contended that a preliminary decree can be amended by wayof a petition under Order 6 Rule 17 CPC. But the circumstances under which https://hcservices.ecourts.gov.in/hcservices/ the application filed under Order 6 Rule 17 CPC in that case was thatwhile drafting the preliminary decree, the share of the 6th defendant wasomitted to be mentioned in the preliminary decree which was ordered to berectified by way of a petition under Order 6 Rule 17 of CPC. So the factsin Nanja Naicken-v- Rangammal(AIR 1972 Madras 384) is not applicable tothe present facts of the case.5. In fine, the revision petition is allowed and the order passed inI.A.No.314 of 2003 in I.A.No.87 of 2002 in O.S.No.60 of 1981 is herebyset aside. The remedy open to the second respondent/4th plaintiff is tofile necessary application, before the said Court wherein the final decreeapplication in I.A.No.87 of 2002 is pending to declare his share and theshares of the other plaintiffs for passing another preliminary decreebefore passing final decree. No costs. Consequently, connectedC.M.P.No.18729 of 2004 is closed. sgSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo 1. The Principal Subordinate Judge, Nagapattinam2. The Section Officer, V.R.Section, High Court, Madras.+ One cc to Mr. Jemmy Vasanth, Advocate Sr 71978+ One cc to Mr. P. Valliappan, Advocate sR 71885VRK (co)sg 13/12/07 CRP(NPD)No.2490 of 2004 05.12.2007