Calcutta High Court (Appellete Side)
Aktari Begum vs Sk. Kutubuddin & Ors on 4 July, 2025
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CO 4093 of 2024
Aktari Begum
Vs.
Sk. Kutubuddin & Ors.
For the Petitioner : Mr. Sabir Ahmed,
Mr. Dhiman Banerjee,
Mr. Tasnim Ahmed.
For the Opposite Party Nos. 3 & 4 : Mr. Chittapriya Ghosh,
Ms. Aishwarya Gupta,
Ms. Priyanka Saha.
Hearing concluded on : 23.06.2025
Judgment on : 04.07.2025
SHAMPA DUTT (PAUL), J. :
1. The revision has been preferred challenging an Order dated
03.06.2024 passed by the Learned Civil Judge (Senior Division)
at Birbhum in Title Suit No.76 of 2011.
2. Vide the order under challenge the trial Court while considering
the petitioner’s application under Order 1 Rule 10 CPC, held as
follows:-
“……..The petitioner stated that the petitioner and their
brothers and sisters are the co-sharers of the suit
property and possessing their respective shares and
Page 2same is evident from the report of concern R.I. of BL &
LRO submitted in MP case no.-70 of 2017.
It is stated by the petitioner that plaintiffs of
the present suit got decree by suppressing the true and
actual fact by non-joining the petitioner and her
brothers and sisters as parties to the instant suit and
as such, the said decree is liable to be set aside.
It transpires from the record that instant suit
was decreed on contest in part against defendant nos.-
1 to 5 and as ex parte against the other defendants on
19.12.2016. Admittedly, the present petitioner
was not made party to the instant suit. The
present petitioner filed the instant petition where the
final decree application is pending.
As per section 96 of Code of Civil Procedure, an
appeal shall lie from every decree passed by any court
exercising original jurisdiction to the court authorized to
hear appeal from decision of such court.
In the instant case, the present petitioner who
raised the plea that she is also co-sharer of the suit
property in respect of which preliminary decree has
been passed in the instant suit and she has not been
impleaded as party and therefore, she has been
Page 3aggrieved by the order of the preliminary decree, the
remedy lies to her to file an appeal as aggrieved
person. The court has already passed a preliminary
decree it cannot entertain the instant petition and
cannot set aside his own decree.
On the basis of above observation, this court is
not inclined to allow the petition filed by the petitioner
Under Order 1 Rule 10 read with section 151 of C.P.C.,
dt., 21.01.2019.
Hence, the petition is rejected and disposed of
accordingly……..”
3. The petitioner along with his supplementary affidavit has filed a
family succession chart, where in it appears that the petitioner
herein is also a co-sharer in the suit property but admittedly
she was not made a party in the suit for partition, which has
been decreed in preliminary form, of which the petitioner
has prayed for re-opening.
4. Written notes have been filed by both the parties along with
judgments relied upon.
5. The following judgments have been relied upon by the
petitioner:-
Page 4
i. Mumbai International Airport Private Limited vs
Regency Convention Centre and Hotels Private Limited
& Ors., (2010) 7 SCC 417.
ii. Sumtibai & Ors. vs Paras Finance Co. & Ors., (2007) 10
SCC 82.
iii. S. Pitchai vs Ponnammal & Ors., 2017 SCC OnLine Mad
37792.
iv. Ramader Appala Narasinga Rao vs Chunduru Sarada,
1975 SCC OnLine AP 160.
v. Jadabendra Narayan Choudhury & Ors. vs Shitanshu
Kumar Choudhury @ Subhendra Choudhury, 2013 SCC
OnLine Cal 610.
6. The following judgments have been relied upon by the opposite
parties:-
a) Neelakantha Pillai Ramachandran Nair vs Ayyappan
Pillai Kumara Pillai, AIR 1978 Kerala 152.
b) Shrimati Bijaya Acharya vs Shrimati Radhika Bala
Mondal & Ors., 1997 SCC OnLine Cal 3.
c) Kumari Bilkishben D/o Decd. Ishakbhai A. Kadarbhai vs
Huned Saifuddin & 16, 2011 SCC OnLine Guj 7029.
d) Kashed Alli Sardar & Ors. vs Ms. Hamida BiBi & Ors.,
AIR 2012 Calcutta 165.
Page 5
7. The Supreme Court in Venkata Reddy & Ors. Versus Pethi
Reddy (AIR 1963 Supreme Court 992) has held:-
“6. The new provision makes it clear that the law is
and has always been that upon the father’s insolvency
his disposing power over the interest of his undivided
sons in the joint family property vests in the Official
Receiver and that consequently the latter has a right to
sell that interest. The provision is thus declaratory of
the law and was intended to apply to all cases except
those covered by the two provisos. We are concerned
here only with the first proviso. This proviso excepts
from the operation of the Act a transaction such as a
sale by an Official Receiver which has been the subject
of a final decision by a competent court. The short
question, therefore, is whether the preliminary decree
for partition passed in this case which was affirmed
finally in second appeal by the High Court of Madras
can be regarded as a final decision. The competence of
the court is not in question here. What is, however,
contended is that in a partition suit the only decision
which can be said to be a final decision is the final
decree passed in the case and that since final decree
proceedings were still going on when the Amending Act
came into force the first proviso was not available to
the appellants. It is contended on behalf of the
appellants that since the rights of the parties are
adjudicated upon by the court before a preliminary
decree is passed that decree must, insofar as rights
adjudicated upon are concerned, be deemed to be a
final decision. The word decision even in its popular
sense means a concluded opinion (see Stroud’s
Judicial Dictionary 3rd Edn. Vol. I, p. 743.) Where,
therefore, the decision is embodied in the judgment
which is followed by a decree finality must naturally
attach itself to it in the sense that it is no longer open to
question by either party except in an appeal, review or
revision petition as provided for by law. The High Court
has, however, observed:
“The mere declaration of the rights of the
plaintiff by the preliminary decree, would, in our
opinion not amount to a final decision for it is
well known that even if a preliminary decree is
passed either in a mortgage suit or in a partition
suit, there are certain contingencies in which
Page 6such a preliminary decree can be modified or
amended and therefore would not become final.”
It is not clear from the judgment what the contingencies
referred to by the High Court are in which a
preliminary decree can be modified or amended unless
what the learned Judges meant was modified or
amended in appeal or in review or in revision or in
exceptional circumstances by resorting to the powers
conferred by Sections 151 and 152 of the Code of Civil
Procedure. If that is what the High Court meant then
every decree passed by a court including decrees
passed in cases which do not contemplate making of a
preliminary decree are liable to be “modified and
amended”. Therefore, if the reason given by the High
Court is accepted it would mean that no finality
attaches to decree at all. That is not the law. A decision
is said to be final when, so far as the court rendering it
is concerned, it is unalterable except by resort to such
provisions of the Code of Civil Procedure as permit its
reversal, modification or amendment. Similarly, a final
decision would mean a decision which would operate
as res judicata between the parties if it is not sought to
be modified or reversed by preferring an appeal or a
revision or a review application as is permitted by the
Code. A preliminary decree passed, whether it is in a
mortgage suit or a partition suit, is not a tentative
decree but must, in so far as the matters dealt with by
it are concerned, be regarded as conclusive. No doubt,
in suits which contemplate the making of two decrees a
preliminary decree and a final decree — the decree
which would be executable would be the final decree.
But the finality of a decree or a decision does not
necessarily depend upon its being executable. The
legislature in its wisdom has thought that suits of
certain types should be decided in stages and though
the suit in such cases can be regarded as fully and
completely decided only after a final decree is made
the decision of the court arrived at the earlier stage
also has a finality attached to it. It would be relevant
to refer to Section 97 of the Code of Civil
Procedure which provides that where a party
aggrieved by a preliminary decree does not
appeal from it, he is precluded from disputing its
correctness in any appeal which may be
preferred from the final decree. This provision thus
clearly indicates that as to the matters covered by it, a
Page 7
preliminary decree is regarded as embodying the final
decision of the court passing that decree.”
8. In Kashed Ali Sardar & Ors. Versus Ms. Hamida Bibi & Ors.,
AIR 2012 Calcutta 165, the Court held:-
“1. The common question involved in these revisional
applications under Article 227 of the Constitution is
whether the learned Judges of the trial Court were
justified in allowing impleadment of new parties as
additional defendants in the partition suits pending
before them, upon allowing applications under Order I
Rule 10(2), Code of Civil Procedure Code made in that
behalf after preliminary decrees in the suits had been
passed therein, which attained finality by reason of
not being appealed against.
6. A bare perusal of the aforesaid decisions would
reveal that it is not the law that addition of party, after
preliminary decree in a partition suit has been passed,
can never be allowed. On the contrary, the rulings do
seem to suggest that the Court may, having regard
to exceptional facts and circumstances, allow
addition of a party even after preliminary decree
has been passed. However, the learned Judges
appear to be ad idem that if addition of a party would
necessitate ripping open the determination made in the
preliminary decree already passed in the suit, in such
a situation addition cannot be allowed. The learned
Judges arrived at such conclusion considering Section
97 of the Code.
11. Strong reliance was placed by him on the decision
in Phoolchand (supra). He contended that the said
decision is an authority for the proposition that there
could be more than one preliminary decree and that if
an event transpires after the preliminary decree is
passed, which necessitates a change in shares, it
should be the duty of the Court to do so. Much
emphasis was laid by him on the observation to the
effect that “(so) far therefore as partition suits are
concerned we have no doubt that if an event
transpires after the preliminary decree which
necessitates a change in shares, the court can
and should do so….”. According to him,
consideration of adding a party in a partition
suit, even after passing of preliminary decree
Page 8therein, would not be confined only to death of a
party or transfer of shares from lawful owners
but would extend to any circumstance
transpiring after such preliminary decree that
would necessitate passing of a second
preliminary decree, even by adding parties if
required. He referred to „fraud‟ as vitiating the
most solemn of transactions and, according to
him, if a party seeking addition in a partition
suit is able to demonstrate that the preliminary
decree that has been passed is vitiated by fraud,
there is no reason as to why the addition may not
be allowed merely because there is an
unchallenged preliminary decree inter-se between
the parties to the suit.
12. It was also contended by him that Section 97
of the Code would be applicable only to parties to
the suit and a non-party, having an independent
right and a direct interest in the subject matter
of the suit, could be added as a defendant if he
does satisfy the Court that he had no knowledge
of the institution of the suit as well as the
preliminary decree earlier. This is so because the
Court in terms of Order 1 Rule 10(2) of the Code is
entitled, at any stage of the proceedings, to add
parties not only on the application of the
plaintiff or the party seeking to be added but
also suo motu and such power is not affected by
any other provision of the Code.
16. For understanding the context in which the
observations were made by the Supreme Court on
which Mr. Roy Choudhury heavily relied, as extracted
supra, it would be worthwhile to read the entire
paragraph of the decision in Phoolchand (supra)
wherein it occurs. Paragraph 7, being the relevant
paragraph, reads thus:
“7. We are of opinion that there is nothing in the
Code of Civil Procedure which prohibits the
passing of more than one preliminary decree if
circumstances justify the same and that it may be
necessary to do so particularly in partition suits when
after the preliminary decree some parties die and
shares of other parties are thereby augmented. We
have already said that it is not disputed that in
partition suits the court can do so even after the
Page 9preliminary decree is passed. It would in our
opinion be convenient to the court and
advantageous to the parties, specially in
partition suits, to have disputed rights finally
settled and specification of shares in the
preliminary decree varied before a final decree is
prepared. If this is done, there is a clear determination
of the rights of parties to the suit on the question in
dispute and we see no difficulty in holding that in such
cases there is a decree deciding these disputed rights;
if so, there is no reason why a second preliminary
decree correcting the shares in a partition suit
cannot be passed by the court. So far therefore as
partition suits are concerned we have no doubt that if
an event transpires after the preliminary decree which
necessitates a change in shares, the court can and
should do so; and if there is a dispute in that behalf,
the order of the court deciding that dispute and making
variation in shares specified in the preliminary decree
already passed is a decree in itself which would be
liable to appeal. We should however like to point
out that what we are saying must be confined to
partition suits, for we are not concerned in the
present appeal with other kinds of suits in which also
preliminary and final decrees are passed. There is no
prohibition in the Code of Civil Procedure against
passing a second preliminary decree in such
circumstances and we do not see why we should rule
out a second preliminary decree in such circumstances
only on the ground that the Code of Civil Procedure
does not contemplate such a possibility. In any case if
two views are possible – and obviously this is so
because the High Courts have differed on the question
– we would prefer the view taken by the High
Courts which hold that a second preliminary
decree can be passed, particularly in partition
suits where parties have died after the
preliminary decree and shares specified in the
preliminary decree have to be adjusted. We see no
reason why in such a case if there is dispute, it should
not be decided by the Court which passed the
preliminary decree, for it must not be forgotten that
the suit is not over till the final decree is passed
and the Court has jurisdiction to decide all
disputes that may arise after the preliminary
decree, particularly in a partition suit due to
Page 10deaths of some of the parties. Whether there can be
more than one final decree does not arise in the
present appeal and on that we express no opinion. We
therefore hold that in the circumstances of this case it
was open to the Court to draw up a fresh preliminary
decree as two of the parties had died after the
preliminary decree and before the final decree was
passed. Further as there was dispute between the
surviving parties as to devolution of the shares of the
parties who were dead and that dispute was decided
by the trial Court in the present case and thereafter the
preliminary decree already passed was amended, the
decision amounted to a decree and was liable to
appeal. We therefore agree with the view taken by
the High Court that in such circumstances a
second preliminary decree can be passed in
partition suits by which the shares allotted in
the preliminary decree already passed can he
amended and if there is dispute between surviving
parties in that behalf and that dispute is decided the
decision amounts to a decree. We should however like
to make it clear that this can only be done so long as
the final decree has not been passed. We therefore
reject this contention of the appellant.”
19. The different High Courts, referred to above,
appear to be ad idem on the point in issue. This has
been the law for more than the last four decades. I do
not see any reason to take a view different from the
one taken. If at all certain parties have instituted
a collusive suit to obtain a decree for partition of
lands that do not belong to them or over which
they can claim no valid and legal right, title and
interest, it would be open to the aggrieved
opposite parties 1 to 20 in C.O. 1492 of 2011 to
initiate steps in accordance with law to have the
final decree declared null and void on all
grounds that may be available to them in law, as
and when the same is sought to be enforced. Their
addition as defendants at this stage of the suit, as
rightly contended by Mr. Ghosh, is likely to result in
ripping open the preliminary decree, which ought not to
be encouraged.
21. Insofar as C.O. 2237 of 2011 is concerned, there
appears to have been a transfer by lease resulting in
increase in the number of share-holders after the
Page 11
preliminary decree was passed. Having regard to the
authorities noticed above, the order impugned must be
upheld. C.O. 2237 of 2011 stands dismissed
accordingly.”
9. In Dinanath Kumar vs Nishi Kanta Kumar & Ors., 1951 SCC
OnLine Cal 113, the Calcutta High Court held:-
“2. We have heard the learned Advocates for the
parties at considerable length and without going into
all the details of the various arguments that have been
advanced before us, we are impressed by the
contention put forward by the learned Advocate for the
petitioner before us viz., Dinanath, that if we permit
Dinanath to intervene for adjudication of the question
as to whether his son Nishikanta was merely
benamdar for him, that will save multiplicity of
proceedings and obviate much needless harassment to
the mortgagors who are not challenging the right of
Dinanath. Even though a preliminary decree has
been passed in the mortgage suit, the suit is still
pending and there is no legal bar in appropriate
circumstances to Dinanath being permitted to
come in even at this stage. It is obvious that the
father and the son have fallen out for some reasons
and if by refusing the prayer of Dinanath under O. 1,
R. 10, we drive the parties to further litigation, the
mortgagors will be put to much unnecessary
harassment for no fault of theirs. We feel that in the
circumstances of the present case Dinanath’s presence
before the Court is necessary in order to enable the
Court effectually and completely to adjudicate upon
and settle all the questions involved in the suit. In
these circumstances we are of opinion that Dinanath’s
prayer for being added a party to the proceedings
should be allowed.”
10. Admittedly the petitioner in this case is a co-sharer in the
suit property and having been left out of the suit for partition,
has been prejudiced and is thus entitled to be made a party in
the suit by way of opening the preliminary decree and in this
Page 12
case it will not be a case of ripping open the preliminary
decree.
11. A preliminary decree by the term itself indicates that it is not
final and when a decree is not final and a person’s right as to
share in the property has been left out intentionally, the same
amounts to fraud and ends of Justice requires that such wrong
is rectified and this is best done before a final decree is passed.
12. The case as made out herein, is also an exceptional case and
there is no legal bar to a second preliminary decree.
13. In Moreshar S/O Yadaorao Mahajan vs Vyankatesh Sitaram
Bhedi (D) Thr. LRS. and Ors., in Civil Appeal Nos. 5755-5756
of 2011, decided on September 27, 2022, the Supreme Court
held:-
“17. This Court, in the case of Mumbai
International Airport Private Limited (supra),
has observed thus:
“15. A “necessary party” is a person who ought to
have been joined as a party and in whose
absence no effective decree could be passed at all
by the court. If a “necessary party” is not
impleaded, the suit itself is liable to be dismissed.
A “proper party” is a party who, though not a
necessary party, is a person whose presence
would enable the court to completely, effectively
and adequately adjudicate upon all matters in
dispute in the suit, though he need not be a
person in favour of or against whom the decree is
to be made. If a person is not found to be a proper
or necessary party, the court has no jurisdiction to
implead him, against the wishes of the plaintiff.
Page 13
The fact that a person is likely to secure a
right/interest in a suit property, after the suit is
decided against the plaintiff, will not make such
person a necessary party or a proper party to the
suit for specific performance.”
18. It could thus be seen that a “necessary party”
is a person who ought to have been joined as a
party and in whose absence no effective decree
could be passed at all by the court. It has been
held that if a “necessary party” is not impleaded,
the suit itself is liable to be dismissed.
20. It can thus be seen that what has been held
by this Court is that for being a necessary party,
the twin test has to be satisfied. The first one is
that there must be a right to some relief against
such party in respect of the controversies involved
in the proceedings. The second one is that no
effective decree can be passed in the absence of
such a party.”
14. The order dated 03.06.2024 passed by the Learned Civil Judge
(Senior Division) at Birbhum in Title Suit No.76 of 2011, is thus
set aside, being not in accordance with law.
15. Preliminary decree be reopened and the petitioner herein be
added as a party on her application under Order 1 Rule 10 CPC
being allowed. Trial Court to note accordingly.
16. Trial Court to dispose of the suit expeditiously on permitting
the parties to adduce evidence, if deemed necessary for
adjudication.
17. CO 4093 of 2024 is disposed of.
18. All connected application, if any, stands disposed of.
19. Interim order, if any, stands vacated.
Page 14
20. Urgent Photostat certified copy of this judgment, if applied for, be
supplied to the parties, expeditiously after complying with all
necessary legal formalities.
[Shampa Dutt (Paul), J.]