Legal Question in Civil Litigation in India

Fact of the case

�A� & �B� are two brothers. A died leaving behind him his two sons and B died leaving behind his three sons, widow and five daughters.

The property is admittedly the ancestral property of �A� & �B� including homestead. In the year 1998, the sons of �A� filed a partition suit against the aforesaid legal heirs of �B� for partition claiming � share.

In that suit, notices were issued in both ways. Plaintiff had filed postal receipts, postal A.D. has been returned against some of the defendants. The court peon had returned his summons mentioning that the sons and widow of �B� who were staying in one house refused to receive the summon after understanding the contents of the plaint and for which he had affixed the same before the door. Now on record some of the postal receipts are not found but �postal receipts filed� has been reflected in the order sheet. The plaintiff has not filed affidavit to prove the summons issued through process surveyor by court.

The court considering the aforesaid summons passed order that the defendants are set expartee and accordingly passed the preliminary decree expartee, declaring that the plaintiff i.e., the successor of �A� have � share over the suit land on dt. 10/02/03.

Thereafter, the plaintiff filed petition, for making final decree. The court had issued notice to the defendants in the final decree proceeding. After notice, all the successors of �B� appeared and admitted the preliminary decree except one son. The said son (Defendant No. 5) filed a petition u/o9 rule 13 Civil Procedure Code to set aside the said expartee preliminary decree on the ground that no notice was served on him in the suit where as, his other brothers, sisters and mother had approached the court for making final decree admitting the expartee preliminary decree.

The court had deputed civil court commissioner for partition the suit land at spot as per preliminary decree. No objection was filed by either party against the commission report and the allotment sheet.

Subsequently, the petition filed u/o 9 rule 13 was dismissed for default. The court accepted the commissioner report and decreed the suit finally and the final decree has been drawn up on stamp paper. The defendant no. 5 who had filed petition u/o 9 rule 13 has been died in the meantime. Now his legal heirs has filed a petition u/o 9 rule 13 to set aside the expartee decree. The other legal heirs of B has filed another partition suit among themselves with respect to the � share allotted to them in the preliminary decree. The present petitioner and other heirs of �B� are not disputing the shares given in preliminary decree.

Now out of the above facts we want to know the answers of the following questions.

1. The successor of �B� are not challenging the � shares allotted to them in the preliminary decree. Can the preliminary decree be set aside on the ground of non-service of summon in case of partition suit?

2. Whether in a partition suit, a defendant is entitled to set aside the preliminary decree and final decree jointly in one petition?

3. When all the successor except one of �B� are supporting the preliminary decree, can we take the advantage out of this?

4. When share is admitted as described in the preliminary decree, can it be set aside on the allegation of one of the co-sharer on the ground of no-service of notice?

5. Kindly furnish us the opinion supported by decisions/citations of the apex court of India in support of plaintiff in a suit for partition to support his expartee decree and to dismiss the petition filed u/o 9 rule 13 Civil Procedure Code.

6. When share given in preliminary decree is admitted, what is the necessary to set-aside the expartee preliminary decree?

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