The Judgment of the Court was delivered by

Mookerjee, J.:— The plaintiff appellant had filed a suit in 1930 for partition of joint family properties belonging to the plaintiff and his brother, defendant No. 1. A preliminary decree was passed by the learned Subordinate Judge, Murshidabad, on the 27th March, 1933. Such of the properties as were found to be joint were directed to be partitioned by metes and bounds into two equal shares,—one to be allotted to the plaintiff and the other to his brother, defendant No. 1. Defendant No. 1, Shyamapada, was held to be liable to render accounts to the plaintiff Tarapada for a certain specified period. If Shyamapada failed to render accounts within one month from the date of the decree a commissioner was to be appointed to take accounts in the light of the findings and observations contained in the judgment. Against this decree an appeal (Appeal from Original Decree No. 185 of 1933) was taken to the High Court and a cross-objection was also filed,. During the pendency of that appeal a Receiver was appointed under the direction of this Court. The plaintiff also deposited Rs. 400 in the Trial Court for meeting the commissioner's costs for partition and accounts. On the 2nd January, 1935, a joint petition was filed by the two brothers before the Subordinate Judge. No copy of the petition is on the record as the same was destroyed before the present proceedings were restarted in 1949. As far as it appears from the ordersheet maintained in the Lower Court in the aforesaid joint petition it was stated that defendant No. 1 would not proceed with the appeal in the High Court; the Receiver also was to tender resignation. This was done and the resignation was accepted on the 3rd January, 1935. The appeal pending in the High Court was also dismissed on a statement made by the Advocates that the appellant did not want to proceed with the same. The cross-objection which had been filed by the respondent was subsequently dismissed for non-prosecution. The records were received back from the High Court on the 10th April, 1935, and the plaintiff applied for withdrawal of Rs. 400 which had been deposited by him after the passing of the preliminary decree for meeting the commissioners' costs. The order for refund was made. No further steps were taken by the parties in the Lower Court except that a joint attempt was made by the parties to compel the Receiver to render accounts for the period during which he had held office. This matter also was finally disposed of by the learned Subordinate Judge on the 8th January, 1937.

2. On October 29, 1949, more than fourteen years after the withdrawal of the Appeal and the cross-objection in the High Court and the filing of joint petitions referred to above, the plaintiff filed an application praying for the passing of a final decree in the partition suit after effecting partition by metes and bounds and on taking accounts through commissioners in terms of the preliminary decree. Objection was raised on behalf of the defendant Shyamapada that the properties declared to be joint in the preliminary decree passed in 1933 had subsequent to that decree been partitioned and the two brothers were in possession of separate parcels. Such partition had been effected through certain arbitrators appointed by the two brothers near about the time when the resignation of the Receiver was obtained by them and the appeal and the cross-objection had been withdrawn. The claim of the plaintiff Tarapada as decreed in the preliminary decree for accounts against Shyamapada had also been satisfied by payment of Rs. 8,000 by the latter to the former. Reference will have to be made in greater detail to the circumstances under which the partition had been effected after the passing of the preliminary decree as the real character of the steps taken by the parties at that stage and the legal effect thereof will have to be considered in the present appeal. On behalf of the plaintiff Tarapada it was contended that as there was a pending suit the alleged reference to arbitration, or the subsequent award by the arbitrators was of no legal effect. The preliminary decree for partition and accounts should therefore be made final after necessary enquiries by commissioners to be appointed by the Court.

3. The learned Subordinate Judge came to the conclusion that the plaintiff was not entitled to apply for a final decree when the terms of the preliminary decree had already been given effect to by the parties amicably. In spite of the fact that there is no time-limit for the filing of an application for the passing of a final decree in terms of a preliminary decree, inasmuch as nothing remains to be done in the present case, the partition suit should be considered to have been disposed of for all practical purposes. The application for the passing of the final decree was accordingly dismissed.

4. On behalf of the plaintiff appellant Mr. Gupta has limited the prayer of the plaintiff to the passing of a final decree for partition only. The amicable payment of Rs. 8,000 by the defendant Shyamapada and the acceptance thereof by the plaintiff Tarapada was in full satisfaction of the latter's claim for accounts against the former. There was no further scope for a commissioner being appointed for taking accounts as directed in the preliminary decree. The only question for decision in the present appeal, therefore, is whether a commissioner for partition can or should be appointed by the Court at this stage for effecting partition of the properties found in the preliminary decree to be jointly held by the two brothers, Tarapada and Shyamapada.

5. It is incontestable that once a preliminary decree is passed by a Court it has no jurisdiction either to pass an order dismissing the suit or to record that the suit has abated as the heirs of one or more of the original and necessary parties had not been substituted within the statutory period. Lachminarain Marwari v. Balmukund Marwari (1) [(1924) 51 I.A 321 : 29 C.W.N 391.] Their Lordships observed:

“After a decree has once been made in a suit, the suit could not be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside. After a decree any party can, as already stated, apply to have it enforced.” (Page 325.)

6. With regard to another question as to the effect of an award in pursuance of a reference in a pending suit without the intervention of the Court there had been divergence of judicial opinion in India. It may be noted that the reference to arbitration in the present case and the subsequent steps taken by the parries had all been completed and terminated before the Arbitration Act of 1940 had come into force. The legality or the effect of the reference to arbitration therefore is to be considered as under section 89 of the Code of Civil Procedure and the provisions contained in Schedule II to the Code.

7. Under the then provisions of the Code, it was generally agreed that an award by the arbitrators under such circumstances could not be enforced as an award; it was however accepted as an adjustment under rule 3 of Order XXIII of the Code of Civil Procedure. Vide Monilal Motilal v. Gokaldas Row-ji (2) (I.L.R 45 Bom. 245); Chambasappa v. Basalingayyar (3) (I.L.R 51 Bom. 908 F.B); Gajendra Singh v. Durga Kunwar (4) (I.L.R 47 All. 637 F.B) and Basoo. Jagannath (5) (A.I.R 1931 Oudh 127).

8. This view, however, was not accepted by the other Courts including the Calcutta High Court. It was held that where in a pending suit the parties go to private arbitration without the consent of the Court, the award cannot be enforced either under Order XXIII, rule 3 of the Code of Civil Procedure or under the Indian Arbitration Act (IX of 1899). It was observed that the Code laid down a scheme for dealing with arbitration in the course of litigation and it intended such arbitration to be in accordance with the strict conditions and stipulations of the Second Schedule to the Code and to be under the supervision of the Court. Vide Dekari Tea Co. Ltd. v. India General Steam Navigation Co. Ltd. (6) (25 C.W.N 127) and Amar Chand Chamaria v. Banwarilal Rakshit (7) (I.L.R 49 Cal, 608),— both decisions by Rankin, J., as he then was, sitting singly in the Original Side of this Court,—and Girimoni Dasi v. Tarini Charan Porel (8) (I.L.R 55 Cal. 538), a Bench decision of this Court. See also Mahammad Miya v. Osman Ali (9) (I.L.R 62 Cal. 229) and Bhimraj Kanailal v. Munia Sethani (10) (I.L.R 14 Patna 799).

9. On behalf of the defendant respondent it is contended that in the present case there is no prayer either to record the so-called award in a reference made in a pending suit without the intervention of the Court, nor is there any attempt made to treat either the reference or the so-called award as an adjustment under rule 3 of Order XXIII of the Code of Civil Procedure. It is urged that it is not necessary for the Court in this case to consider the implication of the principles above mentioned. In the first place, that which is described by the plaintiff appellant to be an award is really a memorandum of partition which had been effected by the parties themselves. The only question before the Court is whether the parties having effected partition after a preliminary decree is passed and whether there is any occasion or scope for the Court to reopen that partition and direct fresh steps to be taken for the passing of a final decree.

10. Mr. Gupta contends that exhibit A was either an award or a deed of partition. To appreciate the real nature of exhibit A it is necessary to describe in short the contents of that document. Its title may be translated as “The list in a memorandum of partition.” It is followed by two columns describing the properties which are allotted to two brothers. The top of each page bears the names of the two brothers — one over each column. After the descriptions of the properties follow certain writings, noting that if any other property be found out not included in the list above, they would remain joint. There are certain other directions about particular other properties. It is further noted that the properties appearing in one of the columns, described as Schedule Ka, fell to Tarapada after a lottery. Similarly those in Schedule Kha fell after the lottery to Shyamapada. These two endorsements are signed respectively by Tarapada and Shyamapada. Two of the three persons appointed as arbitrators also put their signatures at the bottom of that page. Certain properties are described as remaining in the respective possession of the two brothers. It is also stated on this page before the signatures that the parties are to be put in possession of the respective lots, one month after this partition, and thereafter within three days, a deed of partition is to be executed and registered by the two brothers. On going through the concluding portion of this document it is apparent that though at some places directions are given as to how the separate allotments are to be possessed by the respective parties and under what conditions, at other places a statement appears to have been made by the two brothers as to how they are to act with regard to certain other matters.

11. In view of the Calcutta decisions referred to above, the correctness of which is not questioned by the defendant respondent, this document cannot be regarded as a legal award by the arbitrators properly appointed. This can neither be enforced as an award, nor can an application be made for recording the terms contained in the Reference or the Award on the footing that it is an adjustment or compromise under rule 3 of Order XXIII of the Code of Civil Procedure.

12. If exhibit A be considered to be a deed executed by the two brothers for partitioning their joint properties that document is clearly ineffective as partition ing immovable properties valued over Rs. 100. It had not also been registered al though as a Partition Deed it was compulsorily registrable under section 17 of the Indian Registration Act.

13. Reliance is placed on the provisions contained under section 91 of the Indian Evidence Act in support of the proposition that Exhibit A is inadmissible in evidence and as such the terms and conditions of partition as contained in Exhibit A cannot be allowed to be proved except by the document itself.

14. On behalf of the defendant, however, it is urged that Exhibit A was not an award by arbitrators as, it merely recorded, the result of a lottery which had been held and that also by two out of three persons nominated as arbitrators. It was also not a deed of partition which was required to be compulsorily registered under section 17 of the Registration Act. Exhibit A is really in the nature of a memorandum recording the procedure followed by the two brothers for effecting partition. The document itself indicates that a separate deed of partition was to be executed by the parties, and this paper cannot be considered to be a document by which partition was effected or that there was a disposition of immovable property in praesenti. This contention of the defendant seems to us to be well-founded. Exhibit A is really a recital of the fact that two brothers are partitioning the properties, a list of which is contained in the document. Reference will be made hereafter to the clear, unequivocal statements by the brothers as to when the partition had actually been effected by the parties. Exhibit A is not a deed of partition, but a memorandum wherein is recorded a description of the properties partitioned and the modus operandi adopted to ascertain which of the properties would be possessed by one or the other. Under those circumstances section 91 of the Evidence Act is not attracted. This document cannot be admissible under section 91 of the Evidence Act as proving the factum of partition. It is however admissible as a piece of evidence to prove that partition had already taken place and explain the correct position of the respective parties as proved by other pieces of relevant evidence.

15. In Varada Pillai v. Jeevarathammal (11) (I.L.R 46 I.A 285 : 24 C.W.N 346), the Judicial Committee of the Privy Council held that a petition by which the petitioners recited that they had made a gift of two villages and prayed that the villages might be transferred into the name of the donee was admissible as evidence that the subsequent receipt of the rents by the donee was in the character of owner of the property so as to make her possession adverse to that of the petitioners, although by reason of section 123 of the Transfer of Property, Act and section 91 of the Indian Evidence Act, the petition was not admissible to prove a gift. Their Lordships observed that the petition “may nevertheless be referred to as explaining the nature and character of the possession thenceforth held by Duraisani. In other words, although the petitions and order do not amount to a gift of the land, they lead to the inference that the subsequent receipt of the rents by Duraisani was a receipt in the character of donee and owner of the land, and therefore, in her own right, and not as trustee or manager for her mother and aunt.”

16. Exhibit A in the present case cannot be regarded as a deed of partition. The lan guage used in the body of the document taken along with the title of the deed as also the signatures appended by two of the three alleged arbitrators and both the brothers would justify the only conclusion that it was a memorandum of partition which the parties were effecting and for which a separate formal document would be executed in future.

17. In this connection reliance was placed by the learned Advocate appearing on behalf of the defendant respondent on Ramrattan v. Parma Nanda (12) [(1945) 50 C.W.N 367 (P.C)]. The point in issue in this case was whether partition amongst the parties had been effected in 1939 by two duplicate memoranda signed by the parties or that partition had previously been effected before such memoranda were signed. Under section 35 of the Indian Stamp Act such unstamped memoranda were held to be inadmissible “for any purpose”. On an examination of the evidence, the Judicial Committee affirmed the decision of the High Court holding that “the evidence establishes a physical division of each of the joint properties in February, 1939, and this is only consistent with a severance of the status of the parties having taken place.” The Judicial Committee further proceeded to consider whether the two memoranda (marked C and D for identification) which were inadmissible for determining the factum of partition could be referred to for ascertaining the particulars of the properties described above. It was observed:

“It has been argued for the appellant that the decree of the High Court erred in referring to the documents marked ‘C’ and ‘D’ which were inadmissible in evidence. But the documents were not used as evidence; they were employed merely as a convenient means of identifying the properties admitted by the respondent to be joint thereby avoiding setting out the properties in a Schedule to the order which would have been a more regular course.”

18. The declaration by the High Court that the appellant was entitled to half share in the agricultural lands which the respondents admitted to be joint, and a preliminary decree for partition of the properties mentioned in the documents marked “C” and “D” and admitted by the respondent in such document to be joint, was affirmed.

19. No doubt the particular point in issue for the decision of the Judicial Committee in that case was not exactly the one which is now before us, but the reason adopted by the Judicial Committee assists us to answer the question raised in the present appeal. Even though a document is under section 35 of the Indian Stamp Act inadmissible and “for any purpose”, they may be “employed merely as convenient means” of identifying the properties set, out in the document. No doubt, section 91 of the Indian Evidence Act was not directly relevant nor was it referred to in the judgment. Collateral use of a document, not admissible for any purpose whatsoever, was allowed to be made. With great respect to the Judicial Committee, there appears to be a lacuna in the line of reasoning, but we need not consider the effect of this decision in greater detail at this stage, as we have already come to the conclusion that Exhibit A in the appeal now before us was not a deed of partition,. requiring registration under section 17 of the Indian Registration Act.

20. There are, however, certain special facts in the case now before us which make it possible to decide the issue on another ground.

21. As had already been stated, the plaintiff had come to Court for relief on the plea that there were properties held jointly between him and his brother defendant. The defendant pleaded inter alia that there had been an earlier partition, and he also raised the question whether certain of the specific properties described as joint by the plaintiff were actually joint or were owned as separate property. The Court in passing the preliminary decree finally decided that the two brothers held certain joint properties and the Court also gave a final decision as to which of the properties were joint. The Court further held that the defendant was liable to render accounts in a particular way. The parties were not satisfied with the decree as passed. One of the parties preferred an appeal to the High Court while the other preferred a cross-objection, attacking the respective portions of the decree disallowing some portion or other of the claim made by them. The plaintiff also took necessary steps by depositing the required amount of costs in the Trial Court for taking accounts and effecting partition. The direction for the appointment of commissioners was, however, kept in abeyance pending the decision of the appeal in the High Court, Certain terms were imposed for allowing stay of further proceedings.

22. In the meantime, through the intervention of their friends and well-wishers, the claim for the decree for accounts in favour of the plaintiff along with subsequent claims and counterclaims were settled out of Court. Loans were raised on mortgage parties agreed to make certain payments, and for that purpose joint petitions were filed in the Trial Court on the 2nd and 3rd January, 1935. The contents of the petitions are not now available except indirectly from what is recorded in the ordersheet of the Trial Court. It is noted in Order No. 173, dated the 3rd January, 1935 that the parties jointly stated that they had agreed that the Receiver previously appointed by the Trial Court under the direction of the High Court be immediately discharged. A simultaneous letter of resignation tendered by the Receiver was forthwith accepted. It was further stated that the parties would not proceed with the appeal (Appeal from Original Decree No. 185 of 1938) pending in the High Court. The joint petition filed by the parties the previous day was to be kept on the record.

23. On the 9th January, 1935, each of the two brothers executed a mortgage in favour of Joy Chand Saraogia and Kishori Mal Sarogia which are marked as Exhibits F and F(1) in the present case. Reference was made in these mortgage bonds to the pending partition suit in the Court of the Subordinate Judge at Berhampore and to the Appeal from Original Decree No. 185 of 1933 pending in this Court.

“The said suit has been amicably settled between us both brothers” and that application had been filed to that effect in the Court of the Subordinate Judge and that the appeal would not be proceeded with in the High Court. Reference is also made to the statement of the claim for accounts in the suit, and “for contribution sued for and not sued for on account of payments of rents, etc., up to date as also of other claims.” Money being required for meeting the respective liabilities of the two brothers in respect of claims aforesaid and pre-existing liabilities on the estate, loans were being taken by the parties.

24. There is a clear statement in Exhibits F and F (1), mortgage bonds executed by the two brothers, that “the partition suit had been amicably settled” between them.

25. It further appears from the oral evidence adduced that with the help of other persons the two brothers had amicably partitioned the joint estate.

26. Exhibit B, a joint petition, was filed by Shyama Pada and Tarapada who were respectively the plaintiff and the defendant in S.C.C Suit No. 226 of 1942 in the Second Court of the Munsif at Jangipur on the 8th March, 1943. In paragraph 1 of that petition it was stated:

“There was suit for partition of all joint properties of the plaintiff and the defendant No. 1 held in their own names or in the benami of others, and for purposes of partition of all joint properties under the preliminary decree therein, Babu Joychand Sereogi, Babu Nital Charan Roy and Babu Makhan Chandra Das were appointed arbitrators by both parties on the basis of a registered agreement, dated 9th January, 1935 last. According to the memo of partition of all joint properties, held in own names in the benami of others in equal shares, prepared by Babu Nitai Charan Roy and Babu Makhan Chandra Das, out of the said arbitrators, the properties of Schedule (Ka) were allotted to the share of the defendant No. 1 and the properties of Schedule (Kha) to the share of the plaintiff; and the plaintiff and the defendant No. 1 put their signatures on the said memo in token of their consent. The said partition being in two equal shares and the plaintiff and defendant No. I being in possession, the plaintiff and the defendant No. I will continue to be in separate possession in accordance therewith and the plaintiff and the defendant No. 1 accept the said partition without objection and the plaintiff and the defendant No. 1 shall not and shall never be entitled to raise any objection thereto.”

27. Although the subject matter of the dispute between the parties in the Court of Small Causes is not clear the parties stated before the Court (1) that which is marked as Exhibit A in the present case was a memo of partition; (2) that the allotments described in that memo were allotted to the two parties; (3) that the plaintiff and the defendant No. 1 would continue to be in separate possession, and for that the two parties accept the partition already effected without any objection and that they would never be entitled to raise any objection thereto. In view of the partition effected and the statement by the parties, the Small Cause Court suit in which the joint petition was filed as also Title Suit No. 152 of 1943 in the First Court of the Munsif at Jangipur were not proceeded with. Both the suits were dismissed and struck off.

28. Two years later, in a suit (Mortgage Suit No. 33 of 1945) filed by one Dolgobinda to enforce a mortgage in his favour by the Receiver who had been appointed in the partition suit between the two brothers, a written statement was filed by Tarapada, defendant No. 2 in the said suit. He is the plaintiff in the partition suit and appellant in this Court now. This has been marked as Exhibit G in the present case. In paragraph 2 of the said written statement, Tarapada stated:

“Out of the mortgaged properties in suit the properties of Items 1 to 5 have been sold at Astam sale. The remaining properties have been amicably partitioned be tween the defendants Nos. 1 and 3 (Shya-mapada and Tarapada) on the 23rd Fa\-goon, 1341 B.S (the date on which exhibit A appears to have been signed by the two brothers). As a result of the said partition this defendant and the defendant No. I have been possessing and enjoying the properties specifically obtained in their shares since that time as the 16 as owners thereof………. The manner in which the mortgaged properties have been partitioned between these defendants is described in the schedule to the written statement……………”

29. From the statements and admissions made jointly by the two brothers in exhibit B in 1943 and by Tarapada in exhibit G in 1945, it is clear that there had been in fact a partition of the joint properties which had been directed in the preliminary decree to be partitioned by metes and bounds.

30. Moreover, Shyamapada, the defendant in the present suit, filed on the 14th August, 1944, a suit (Title Suit No. 102 of 1944) in the First Court of the Munsif at Jangipur against his brother for a mandatory injunction directing the latter for closing windows and for taking certain other actions so as to make it possible for the two brothers to give effect to the partition which had already taken place. The defence which was raised by Tarapada in this Suit for mandatory injunction may be inferred from his deposition in that suit (exhibit H in the present case). He admitted that he was in possession of all the lands allotted to him under the partition effected in Falgun, 1341 B.S His contention was that the dwelling house had not been partitioned. He also admitted that there had been transfers after the partition referred to above. He himself had started construction of a separate house on a plot of land adjoining the original ejmali house and allotted to him alone on partition. The claim of Shyamapada in that suit for mandatory injunction was allowed by the Trial Court and was affirmed by the District Judge. Tarapada came to this Court on appeal (Appeal from Appellate Decree No. 69 of 1946). The appeal preferred by Tarapada was dismissed (Exhibit C3). The defence raised by Tarapada was rejected on the ground that the memorandum of partition had been accepted by both the brothers and the defendant Tarapada who is the plaintiff in the present partition suit had reaped certain advantages under the partition. The plaintiff was accordingly allowed the mandatory injunction granted by the lower court.

31. It was during the pendency of the second appeal, above referred to, in this Court that the plaintiff Tarapada filed a petition on the 21st September, 1949, in the Court of the Subordinate Judge in the original partition suit for the appointment of commissioner in accordance with the terms of the preliminary decree for effecting partition by metes and bounds and for taking accounts. The decree which had been obtained by Shyamapada in the suit for mandatory injunction and which had been affirmed by this Court has been stayed till the final disposal of the present proceedings started by the plaintiff in his attempt to reopen the partition already effected after the preliminary decree.

32. From the enumeration of the facts referred to above, there is evidence, clear and unambiguous, including unequivocal admissions by Tarapada that an actual partition by metes and bounds had been effected in 1935 and that the parties have been in separate possession in accordance with such partition.

33. It is unquestionable that the right of a party to claim partition primarily depends on a fact to be proved that there are divisible joint properties held by the parries. If there be no such property the Court cannot be called upon to pass a decree for partition. This principle may be invoked not only when a suit is filed by a party for effecting partition and before a preliminary decree is passed, but it is equally applicable at every stage of the partition suit. If all the parties to a partition suit amicably effect a partition, whatever-may be the form of procedure adopted leaving no-thing as joint family property, is there anything further for the Court to do?

34. In the present case after the Court had declared the rights of parties and passed a preliminary decree the parties were given an opportunity to have the declaration finalised through Court. It did not disentitle the parties from amicably settling their disputes and effecting partition without the help of the Court.

35. From what has been described above and the clear admissions of the parties nothing now remains to be done under the preliminary decree.

36. The matter now before the Court is not an application by the defendant to effect partition in terms of an agreement or for enforcing the terms alleged to have been agreed upon either in the reference to arbitration or in the Memorandum of Partition (Exhibit A) in the case. Had that been the position, it would not have been possible for the Court to pass an order to enforce the illegal reference to arbitration or to record an adjustment.

37. On the other hand, the object of the present proceedings initiated by the plaintiff with an application for the passing of a final decree about fifteen years after partition had actually been effected, and the parties had continued to be in possession is really in form for a direction for the passing of a final decree, but in substance, it is to upset actual partition effected and accounts adjusted by agreement of parties. Until the agreed partition and, rendering of accounts are set aside under proper legal process, if that be possible, it is not possible for the Court in the present proceedings to reopen the partition or to direct refund of the amount which had been paid and accepted as being in full satisfaction of the claims for accounts.

38. The position would have been altogether different if the Reference to arbitration and the memorandum of partition had stood by themselves without the parties having actually effected partition. There would then have been no doubt that either of the parties would have been entitled to ask the Court to complete the proceedings left incomplete on the passing of the preliminary decree by taking steps to complete the proceedings in the suit by passing a final decree. That is not what has happened in the present case. This differentiates the present case on the special facts of this case, from cases where the Court can be called upon to proceed in terms of the preliminary decree and pass a final decree.

39. It is now well settled that if partition is effected by a document, that document must be a registered one. The parties may, however, mutually effect partition without any formal document being executed. The finding which was reached by the Trial Court in the present case that there had been, as a matter of fact, an actual partition of the properties which had been the subject-matter of the preliminary decree and that they are no longer held joint is supported by evidence referred to above. There being no longer any joint property there is no further any necessity for the Court to pass an order for the appointment of a commissioner to effect partition. The brothers having separated already and they being in possession and enjoyment of separate lots, the directions contained in the preliminary decree are not required to and should not be further considered by the Court with a view to the passing of a final decree.

40. The other part of the preliminary decree allowing the claim of the plaintiff to obtain accounts has also been amicably settled. Payments had already been made in full discharge of the claim.

41. Although, therefore, the accepted proposition is that once a preliminary decree is passed by the Court, it is open to the parties to come up subsequently with prayer to make further steps for the passing of a final decree, there is an important exception to the general rule. On proof of changed circumstances, as in the present case, when it is found that there is no necessity or room for the application of general rule, as the parties had already taken advantage of the directions contained in the preliminary decree, the exception to the general rule comes into play. The Court cannot and would not, in equity, take any further steps.

42. On behalf of the defendant respondent, it has been urged that there is a further reason why the plaintiff's prayer for the appointment of a commissioner cannot be given effect to more than twelve years after the parties had effected actual partition in 1935. Parties are in separate possession of respective portions of the properties for over fourteen years. There had been dealings of the properties, and the parties had dealt with the properties in the meantime on the footing that the portion in which each of the respective parties had been put in possession was owned absolutely by such respective parties.

43. It was urged before us on the authority of Elokeshee v. Kunja Bihari (13) (I.L.R 60 Calcutta 940), that it was discretionary for the Court whether a final decree should be passed after a preliminary decree. Although in view of the conclusions reached by us already we are not called upon to consider the general proposition, we may indicate at once that the decision relied upon is no authority for the very broad proposition contended for. All that the Court was called upon to consider in that case was whether it could exercise a discretion for not allowing an application for bringing on the record the heirs of a deceased party after a long lapse of time after the preliminary decree had been passed. The question about the exercise of discretion to pass a final decree after a preliminary decree was not directly in issue. There are no doubt some general observations, but they are to be taken along with the facts of the case. It appears from the records of the case Elokeshee v. Kunja Bihari (13) (supra) reported in 60 Calcutta 940 that after the preliminary decree had been passed fifty-three years rolled on, the original parties were dead, and some of the properties were compulsorily acquired; there were certain transactions in respect of some others. An application was filed after over half a century to bring on the record the heirs of the deceased parties, and for having partition effected in respect of two only of the many properties which had originally been the subject-matter of the partition suit. The petitioner then before the Court was interested in those two properties only and bad no claim to or interest in any of the rest. The application so made was rejected. Rankin, C.J, at the appellate stage did not want to decide finally whether the properties still continued to be joint. The point in issue at that stage of the proceedings was not whether the parties were continuing to be joint as before, before the preliminary decree had been, passed. Owing to the long lapse of time and the changed circumstances, it became impossible to effect partition on the basis of the declaration of title as in the preliminary decree. New parties had come into the picture, some properties had passed out and various new persons had become interested in some or other of the properties. The claims of some of the parties were also contested. An attempt to effect partition at that stage would really mean trying a new partition suit amongst new parties on fresh questions of title which had arisen. That was a matter which could and should be left for decision if the parties so wanted in a new and properly framed suit or suits in the presence of the necessary parties. This is all that was done in that case.

44. The facts in the present case are materially different from those which were before the Court in the case of Elokeshee v. Kunja Bihari (13) (supra) reported in 60 Calcutta 940.

45. No doubt, in the present case also there are some suggestions of dealings with the properties after the preliminary decree, but we have no clear indication as to the nature or scope of such transactions. It is not necessary for us, therefore, to express any final opinion as to whether a Court has a general discretion to direct a final decree to be passed or not to do so after a preliminary decree had been passed.

46. The result, therefore, is that this appeal is dismissed with costs and the order passed by the Trial Court is affirmed.

47. The application under section 115 of the Code of Civil Procedure and Article 227 of the Constitution filed on the 23rd November, 1950, was not pressed at the time of hearing, and is dismissed without any order as to costs.

Lahiri, J.:— I agree.

P.S