Decided on July 18,1952

HUSSAIN SHAH Respondents


Rajamannar, C.J. - (1.) In S. A. No. 4 of 1042 which arose out of O. S. No. 124 of 1930 in the Sub- Court, Kakinada, this court passed a decree inter alia directing a partition of item 1 of the plaint schedule into three equal shares and awarding the plaintiff an one-third share and the other contesting party who is the petitioner before me, a two-third share. Subsequent to the decree of this court, the petitioner filed an application in the court below purporting to be under Sections 2 and 4 of the Partition Act, Act IV of 1893, praying that the provisions of that Act may be applied to him. Only the prayers were not happily worded and it is now conceded by Mr. Bhimasankaram, learned counsel for the petitioner, that the only provision under which the application was really sustain able was Section 2 of the Act. The learned Subordinate Judge did not go into the merits and decide whether Section 2 of the Partition Act applied and whether the petitioner was entitled to invoke its provisions in the circumstances of this case because he considered that the decree of the High Court precluded him from going into the matter. In other words, because the High Court had directed a division of the property, he thought an application invoking the provisions of the Partition Act was not competent thereafter. In this he was obviously in error.
(2.) There is clear authority of this Court in -- 'Kadir Batcha Sahib v. Abdul Rahman Sahib', 24 Mad 639 that Section 2, Partition Act, can be applied though a preliminary decree defining the share of a plaintiff and directing partition had been passed. The learned Judges pointed out that the Act can be applied until the scheme of partition has been finally approved, i.e., until a final decree has been passed. I therefore set aside the order of the learned Judge dismissing the application as not sustainable. He will restore the petition to his "file and proceed to deal with it as an application under Section 2, Partition Act. I wish to say nothing at this stage on the merits of the application. There will be no order as to costs.
(3.) The petition will be disposed of expeditiously without granting any adjournment.;

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