Judgement of the Day Phoolchand v. Gopal Lal AIR 1967 SC 1470


Phoolchand (plaintiff) had filed a suit in 1937 for claiming his one-fifth share in the properties through the partition. That property was to be divided among four members of the family Phool Chand (plaintiff), Sohan Lal (father of plaintiff), Rajmal (brother of the plaintiff), Gopal Lal (defendant). The preliminary decree was passed regarding the same. But before the final degree, Sohan Lal (father) died on May 13, 1947, and soon after that Smt. Gulab Bai (mother of the plaintiff) also died on November 22, 1947. Thereafter dispute between Phoolchand, Rajmal, Gopal Lal arose about the shares allotted to the deceased persons. Gopal Lal claimed that his father Sohan Lal bequeathed all his property to him on June 2, 1940. Phoolchand challenged the genuineness of the will. The trial court considered all the facts redistributed the shares. According to which the share of Phoolchand was increased from one-fifth to one-half, the share of Gopal Lal was increased from one-fifth to one-fourth, and the share of Rajmal was increased from one-fifth to one-fourth. The trial court did not prepare formal 'preliminary decree on the basis of this redistribution of shares. Gopal Lal appealed about this matter in the High Court and wanted a stay of proceedings relating to the preparation of final decree. An issue was raised in High Court can there be two or more than two preliminary decrees in any case. Another objection was raised, can appeal is maintainable it no copy of decree has been filed along with the memorandum of appeal.


The High Court enunciated that the right of Gopal Lal to appeal cannot be taken away merely because he could not present the formal decree in the court. Moreover according to facts and circumstances of the case trial court refused to frame a formal decree on the basis of the variation of shares. In this case, the facts of the case changed because of the change in the share of property after the death of Sohan Lal (father) and Gulab Bai (mother). It was also held that two or more than two preliminary decrees can be passed by the court for any case if the circumstances allow them to do so.

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