Every concerned party is regarded as a plaintiff in the partition suit, and there is no prohibition on issuing multiple preliminary decrees : Supreme Court
In a recent case (A. Krishna Shenoy v. Ganga Devi G. & Ors.), a Division Bench of the Supreme Court emphasized that in a partition suit, every interested party is considered a plaintiff, and there is no prohibition on passing multiple preliminary decrees. The Bench, comprising Justices M.M. Sundresh and Prashant Kumar Mishra, made these observations while addressing the application of Section 10 (stay of suit) of the Code of Civil Procedure (CPC) in a partition suit, where a preliminary decree was sought while a similar trial was already underway.
The Special Leave Petition (SLP) challenged the High Court of Kerala's judgment, which upheld the supplementary preliminary decree granted in favor of the appellant's sisters (respondents No.1 and 2).
Background: The initial suit for partition was filed in O.S. No.205/1994, with the petitioner/appellant as a defendant. The preliminary decree in that suit became final against the petitioner. However, two sisters were not initially parties to the suit. Subsequently, they filed an independent suit in O.S. No.47/2014 seeking partition. During this suit, they applied for another preliminary decree in the earlier suit against the petitioner. A supplementary preliminary decree was passed, confirmed under the impugned order, leading to the filing of the present SLP.
Arguments: The petitioner's counsel argued non-compliance with the mandate of Order XLI, Rule 31 of the CPC. It was also contended that filing a separate suit in 2014 made the application subject to Section 10 of the CPC. The dismissal of the impleadment application by the contesting respondents was highlighted, citing legal precedents.
Court's Observations: Upon examining the impugned order and the Trial Court's preliminary decree, the Supreme Court found compliance with Order XLI, Rule 31 of the CPC, with the High Court providing adequate reasoning. The Court held that the High Court considered the contentions on merit, addressing the issues involved.
The Court rejected the appellant's Section 10 CPC argument, stating that the dismissal of the impleadment application during the final hearing had no bearing on the subsequent application for another preliminary decree. The Court emphasized that the sisters should have been included as defendants in the main suit itself. The dismissal of the application and the courts' disbelief in unregistered wills were considered in the decision.
Result: In light of these findings, the Supreme Court dismissed the Special Leave Petition.