Law:

Section:

Partition--- Preliminary decree--Some of the defendants asking, after preliminary decree, for separation of their shares also-Prayer, held, unobjectionable. In a partition suit a defendant can ask for the separation of his share too. A suit for partition remains pending till the passing of the final decree. It is not possible to accept the proposition that further proceedings after the preliminary decree in a partition suit are really in the nature of execution of the decree already passed, and if this proposition be not accepted and it be held, as one is then bound to hold, that the Court maintains its seizin over the whole dispute, there would obviously be no bar to the Court taking any steps which it could have taken before the preliminary decree. Where some of the defendants, after the preliminary decree, asked for separation of their shares also. Held, that as long as a suit is pending a relief cannot be said to have been refused. it was yet open to the Court to grant this relief and probably the Court as well as the defendants were under the impression that there was no need for a provision in the preliminary decree itself. L. Guran Ditta v. T. R. Ditta A I R 1935 P C 12 and Jadunath Roy and others v. Parameshwar Mullick and Others A 1 R 1940 P C I 1 ref. JUDGMENT KAIKAUS, J.----Mehr Bakhsh father of the present appellant died on the 29th July 1932 leaving behind hire a widow Afsa. Fazal un-Nisa, two sons Muhammad Hafeez rind the appellant, and three daughters Mst. Wazir Begum, Mst. Iqbal Begum and Mst. Amrr Begum. Mst. Amir Begum died some time after her father and left two sons Said ud-Din and Rashid-ud-Din, one daughter Mst. Surayya Begum and a husband Taj-ud-Din. On the 2nd July 1940 Muhammad Hafeez respondent filed Civil Suit No. 118 of 19:11, claiming in the alternative one fourth or one-­half share of the property belonging to Mehr Bakhsh by partition. In this suit a preliminary decree was passed on the 5th March 1942 and Muhammad Hafeez plaintiff was granted one-fourth of the property instead of one-half, it having been found that the parties were governed not by custom as alleged by the plaintiff but by Muhammadan Law. All the descendants of Mehr…

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