Partition suit by amendment rejected where all co-sharers were absent and final findings could not be reopened after abatement

A suit for declaration and permanent injunction cannot be converted by amendment into a partition suit where the pleadings and reliefs are fundamentally different. A preliminary decree for partition is also unsustainable in a partial partition action unless all co-sharers and the entire joint family estate are before the court. Findings that have attained finality due to abatement cannot be reopened. On these principles, the conversion of the suits into partition suits and the grant of a preliminary decree for a share were set aside, and the decree of the trial court as affirmed in first appeal was restored.

---

---

Issues: Whether a suit for declaration and permanent injunction could be converted into a suit for partition by amendment and whether a preliminary decree for partition could be passed when all joint family properties and all co-sharers were not before the court and one appeal had abated.

Analysis: The property dispute had already been adjudicated in the courts below on the footing of joint family property and partition. In one of the connected matters, the death of a defendant and the failure to bring his legal representatives on record resulted in abatement, and the finding recorded in his favour attained finality. The appellate court had only held that there was no satisfactory proof that the suit property was allotted to that defendant in the partition; it had not negatived the existence of partition itself. A suit for declaration and injunction cannot, on a mere amendment, be transformed into a partition action when the pleadings and reliefs are different. Further, a partial partition without impleading all co-sharers and bringing all joint family properties before the court is not maintainable.

Conclusion: The conversion of the suits into partition suits and the grant of a preliminary decree for 1/3rd share were unsustainable and were set aside in favour of the appellants.

Final Conclusion: The judgment of the High Court was reversed and the trial court decree, as affirmed by the first appellate court, was restored.

Ratio Decidendi: A preliminary decree for partition cannot be granted by amendment in a suit for declaration and injunction where the action is for a partial partition without all necessary parties and the entire joint family estate being before the court, especially where findings that have become final because of abatement cannot be reopened.

---