04 July 2025 Partition Related Issue >> Property & Real Estate  

A recent decision by the Calcutta High Court in Aktari Begum v/s Sk. Kutubuddin & Others has clarified the circumstances under which a preliminary decree in a partition suit can be reopened to add a co-sharer who was inadvertently left out. The court set aside an order by the Civil Judge (Senior Division) at Birbhum, emphasizing that justice requires rectifying such omissions, especially when the preliminary decree is not yet final and a party's legitimate share has been overlooke

The Case at Hand:

The revision stemmed from an application filed by the petitioner under Order 1 Rule 10 of the Civil Procedure Code (CPC), seeking to be added as a party to Title Suit No. 76 of 2011. The petitioner contended that she, along with her siblings, was a co-sharer of the suit property, but had been excluded from the partition suit, which had resulted in a preliminary decree on December 19, 2016. The trial court had rejected her application, stating that her remedy lay in filing an appeal against the preliminary decree, as the court could not set aside its own decree.

The Core of the Dispute: Finality of Preliminary Decrees and Joinder of Parties

The central legal question revolved around the finality of a preliminary decree and the scope of Order 1 Rule 10 CPC, particularly when a necessary party has been omitted. The petitioner argued that being a co-sharer, her exclusion amounted to a suppression of facts, rendering the decree liable to be set aside or reopened. Both sides presented extensive legal arguments, citing numerous judgments from the Supreme Court and various High Courts.

Key Legal Precedents and the Court's Analysis:

The Calcutta High Court meticulously examined the precedents cited by both parties:

• Venkata Reddy & Ors. Versus Pethi Reddy (AIR 1963 Supreme Court 992): The Supreme Court in this case clarified that while a preliminary decree is conclusive regarding the matters it deals with, its finality does not necessarily depend on its executability. It emphasized that a decision is final "so far as the court rendering it is concerned," unless altered by appeal, review, or revision. Critically, Section 97 of the CPC states that a party aggrieved by a preliminary decree, if they don't appeal it, is precluded from disputing its correctness in an appeal from the final decree. This suggests a strong degree of finality.
• Kashed Alli Sardar & Ors. Versus Ms. Hamida BiBi & Ors. (AIR 2012 Calcutta 165): This Calcutta High Court judgment, also cited by the opposite parties, acknowledged that while adding parties after a preliminary decree is not generally encouraged if it "rip[s] open the determination made in the preliminary decree," it is not an absolute bar in exceptional circumstances. The judgment in Kashed Alli Sardar specifically discussed the possibility of more than one preliminary decree, particularly in partition suits where circumstances like the death of a party necessitate changes in shares. It also contemplated situations of fraud.
• Phoolchand vs. Gopal Lal (AIR 1967 SC 1470 - referenced in Kashed Alli Sardar): The Supreme Court in Phoolchand affirmed that there's nothing in the CPC prohibiting more than one preliminary decree, especially in partition suits where events post-preliminary decree might necessitate a change in shares. This seminal ruling provides the foundation for allowing modifications to preliminary decrees in certain situations.
• Mumbai International Airport Private Limited vs Regency Convention Centre and Hotels Private Limited & Ors. (2010) 7 SCC 417: This Supreme Court judgment, relied upon by the petitioner, defined "necessary party" as someone whose presence is essential for an effective decree, and without whom the suit itself is liable to be dismissed. The "twin test" for a necessary party requires a right to relief against them and the inability to pass an effective decree in their absence.
• Dinanath Kumar vs Nishi Kanta Kumar & Ors. (1951 SCC OnLine Cal 113): This Calcutta High Court case allowed intervention even after a preliminary decree to avoid multiplicity of proceedings and ensure a complete adjudication of the suit.

The Court's Ruling: Reopening the Preliminary Decree:

The High Court observed that the petitioner was undisputedly a co-sharer and had been left out of the partition suit. It reasoned that such an omission, especially if intentional, could amount to fraud, and that "ends of Justice requires that such wrong is rectified and this is best done before a final decree is passed."

The court explicitly stated that in this "exceptional case," there was no legal bar to a second preliminary decree. It concluded that adding the petitioner as a party would not "rip open" the preliminary decree but rather ensure a complete and just adjudication of the partition suit.

Consequently, the Calcutta High Court:

• Set aside the order of the Learned Civil Judge (Senior Division) dated June 3, 2024.
• Directed the preliminary decree to be reopened and the petitioner to be added as a party under Order 1 Rule 10 CPC.
• Instructed the trial court to dispose of the suit expeditiously, allowing parties to adduce evidence if necessary.

Implications of the Judgment:

This ruling reiterates the principle that while preliminary decrees carry a degree of finality, they are not immutable, especially in partition suits where the complete and effective adjudication of rights requires the presence of all necessary parties. The court's emphasis on rectifying wrongs and preventing multiplicity of proceedings underscores the flexible nature of procedural law when serving the ends of justice. It highlights that in cases where a genuine co-sharer has been omitted, the court has the power to intervene and ensure a just outcome before the final decree is passed.

  Code of Civil Procedure, 1908