What is the scope of the enquiry under Order XXI, Rules 97-101, CPC ?

  In the case on hand, the obstructionists do not claim title under any one of the parties to the litigation. They set up independent title in themselves. What was filed by Dildar-Un-Nissa Begum was only a suit for partition. In a suit for partition, the Civil Court cannot go into the question of title, unless the same is incidental to the fundamental premise of the claim.{Para 113}

139. Therefore, in fine, we hold on Issue No. (i) that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners as well as the Government who have set up independent claims and that whatever was done in pursuance of the preliminary decree was an abuse of the process of law. We also hold on Issue No. (iv) that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves. All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists/claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit. If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Read full Judgment here: Click here

Print Page

Can a claim against persons who hold title to the suit property but are strangers to the partition suit be decided in the same suit?

Take for instance a suit filed for partition by a member of the Hindu Undivided Family. If one of the coparceners or an alienee from such coparcener, claims independent title to one of the properties bought in his individual name, it may be open to the Court while trying the suit for partition to decide whether such a property belongs exclusively to the defendant. To this limited extent, examining the title of a party to the suit schedule property is permissible even in a suit for partition. 

{Para 114}

115. But in a simple suit for partition, the parties cannot assert title against strangers, even by impleading them as proforma respondents. The strangers who are impleaded in a partition suit, may have nothing to say about the claim to partition. But they may have a claim to title to the property and such a claim cannot be decided in a partition suit.

 120. Therefore, we are of the view that the preliminary decree dated 28.06.1963 could not have determined the claim to title made by the legal heirs seeking partition, as against third parties. Any finding rendered in the preliminary decree, that the properties were Mathruka properties liable to be partitioned, was only incidental to the claim of the legal heirs and such a finding will not be determinative of their title to property as against third parties.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Read full Judgment here: Click here

Print Page

Can the executing court decide questions of title raised by third parties who assert independent ownership under Order XXI, Rules 97-101 of the Civil Procedure Code (CPC)?

Technically the High Court may not be right, in the true legal sense, in branding the preliminary decree as vitiated by fraud. But the fact remains that insofar as third parties to the family of Khurshid Jah (and those claiming under them) are concerned, the preliminary decree is nothing more than a mere paper, as those third parties have had nothing to do with the claim for partition, though they have had a legitimate claim to title to the properties, described in the suit schedule. Therefore, we would only say and hold on question Nos. (i) and (iv) that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners and the Government who have set up independent claims. We also hold that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties, who assert independent title in themselves. Marina Beach (in Chennai) or Hussain Sagar (in Hyderabad) or India Gate (in New Delhi) cannot be included as one of the items of properties in the Plaint Schedule, in a suit for partition between the members of a family and questions of title to these properties cannot be allowed to be adjudicated in the claim petitions under Order XXI, Rules 97-101, CPC.

{Para 126}

139. Therefore, in fine, we hold on Issue No. (i) that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners as well as the Government who have set up independent claims and that whatever was done in pursuance of the preliminary decree was an abuse of the process of law. We also hold on Issue No. (iv) that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves. All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists/claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit. If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Read full Judgment here: Click here

Print Page

Can a party holding a preliminary decree of a partition suit acquire title to a specific portion of a particular property and can transfer it to third party?

Therefore, the question of specific immovable properties or specifically identified portions of immovable properties getting allotted to any person merely holding a preliminary decree with respect to an undivided share does not arise. A preliminary decree in a suit for partition merely declares the shares that the parties are entitled to in any of the properties included in the plaint schedule and liable to partition. On the basis of a mere declaration of the rights that take place under the preliminary decree, the parties cannot trade in, on specific items of properties or specific portions of suit schedule properties. Since there are three stages in a partition suit, namely (i) passing of a preliminary decree in terms of Order XX Rule 18(2); (ii) appointment of a Commissioner and passing of a final decree in terms of Order XXVI Rule 14 (3); and (iii) taking possession in execution of such decree under Order XXI Rule 35, no party to a suit for partition, even by way of compromise, can acquire any title to any specific item of property or any particular portion of a specific property, if such a compromise is struck only with a few parties to the suit. {Para 195}

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Read full Judgment here: Click here

Print Page

Whether the bank can accept a final decree in a partition suit as a document of title?

 The second difficulty that the Asset Reconstruction Company has, is that six different companies created an equitable mortgage by deposit of title deeds. As per the averment contained in Para 2 of I.A. No. 110290 of 2022, the deposit of title deeds happened on 25.03.2009. What is said to have been deposited are the certified copies of the final decree in Application No. 517 of 1998 in CS No. 14 of 1958 dated 24.04.1998. {Para 218}

 219. We do not know how a final decree in a partition suit and that too in a notorious suit like CS No. 14 of 1958 could have been taken to be a document of title which can be accepted by way of equitable mortgage. In any case, the deposit of title deeds is said to have taken place on 25.03.2009. By this time, the order of the learned Single Judge (L. Narasimha Reddy, J.) dated 26.10.2004 allowing the claims of the obstructionists had come into existence. Though the said order of the learned Single Judge dated 26.10.2004 was set aside by the Division Bench by an order dated 23.06.2006, the said order of the Division Bench had become the subject matter of the civil appeals even at that time. These civil appeals were eventually allowed by this Court by an order dated 05.03.2014. We do not know how during this interregnum period, the Banks could have accepted this property as security, despite the same being the subject matter of a serious long drawn litigation.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Print Page

Can the court refuse to vary a preliminary decree of partition in final decree proceedings if there is a change in law during those proceedings?

The decision of Vineeta Sharma (supra) also highlights that a change in law during the pendency of an appeal must be considered and appropriately applied. This Court relied upon United Bank of India, Calcutta v. Abhijit Tea Company Private Limited and Ors. reported in MANU/SC/0551/2000 : (2000) 7 SCC 357, wherein, it was held that:

20. Now, it is well settled that it is the duty of a court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. (See G.P. Singh: Interpretation of Statutes, 7th Edn., p. 406.) If, while a suit is pending, a law like the 1993 Act that the civil court shall not decide the suit, is passed, the civil court is bound to take judicial notice of the statute and hold that the suit -- even after its remand -- cannot be disposed of by it. {Para 77}

78. This Court in Vineeta Sharma (supra) clarified the entire position as follows:

107. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.

Xxx xxx xxx

114. In the instant case, the question is different. What has been recognised as partition by the legislation Under Section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of the proviso to Section 6 as discussed in Prakash v. Phulavati [MANU/SC/1241/2015 : (2016) 2 SCC 36: (2016) 1 SCC (Civ) 549] and Danamma [Danamma v. Amar, MANU/SC/0064/2018 : (2018) 3 SCC 343: (2018) 2 SCC (Civ) 385]. If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.

APPLICATION OF THE AFORESAID PRINCIPLES OF LAW TO THE FACTS OF THE PRESENT CASE

79. Let us assume for the moment that the Trial Court would have decreed the suit in favour of the Plaintiff i.e., the daughter giving her 1/3rd share uniformly in all the properties including the ancestral properties. It could have been argued that the Trial Court could not have done so, having regard to the position of law, prevailing at the relevant point of time. However, after the decision of this Court in the case of Vineeta Sharma (supra) such allotment of share would be in accordance with law. 

80. It is in the aforesaid background that daughters are entitled to 1/3rd share in all the properties as scheduled in the plaint. The same would be in accordance with the dictum as laid in Vineeta Sharma (supra), while passing the final decree. At the cost of repetition, we state that by virtue of the preliminary decree passed by the Trial Court, which was confirmed by the Division Bench of the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. As the law governing the parties has been amended before the conclusion of the final decree proceedings, the party benefitted by such amendment (like the two daughters in the case on hand) can make a request to the Trial Court to take cognizance of the Amendment and give effect to the same.

81. We do not find any merit in the submissions canvassed by Mr. Basant, learned Senior Counsel appearing for the Appellants that in a partition suit, the preliminary decree cannot be varied in the final decree proceedings, despite the amendment of the law governing the parties.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023

Print Page

Whether S 4 of Partition Act is applicable if there is partition but property is yet to be divided by metes and bounds?

 In H. Vasudeva Pai v. Kamarunnisa, 2011 (15) SCC 768, the issue of applicability of Section 4 has again been examined at length to hold that even if family is divided in status, in the sense that they were holding the property as tenants in common, but undivided qua the dwelling house in question, and is yet to be divided by metes and bounds, would be covered within the provisions of Section 4 of the Act. Para 4 to 10 of the aforesaid judgment is relevant and is accordingly reproduced hereinbelow:-

"4. The learned District Judge referred to Mayne's Hindu Law and Usage and emphasised the concept of a joint Hindu family and was at pains to point out that the evidence on record did not warrant a finding that the Pai brothers constituted a joint Hindu family. It was only on account of this finding that the learned Judge persuaded himself to hold that section 4 of the partition act did not apply and that the appellant had no preemptive right to purchase the share of the property bought by the respondent.

{Para 17}

 IN THE HIGH COURT OF ALLAHABAD

Matters Under Article 227 No. 7008 of 2016

Decided On: 06.11.2017

Gurudwara Sri Guru Singh Sabha and Ors. Vs. A.D.J., Court No. 16, Muzaffarnagar and Ors.

Hon'ble Judges/Coram:

Ashwani Kumar Mishra, J.

Citation: MANU/UP/3036/2017

Print Page

Supreme court direction to trial court for drawing up the final decree suo motu

We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps Under Order XX Rule 18 of the Code of Civil Procedure. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps Under Order XX Rule 18 of the Code of Civil Procedure soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6406-6407 of 2010

Kattukandi Edathil Krishnan and Ors. Vs. Kattukandi Edathil Valsan and Ors.

Hon'ble Judges/Coram:

S. Abdul Nazeer and Vikram Nath, JJ.

Author: S. Abdul Nazeer, J.

Decided On: 13.06.2022

Print Page

Whether limitation is provided for execution of preliminary decree for partition?

I am of the opinion that an application for
drawing up a final decree in a partition suit is
in no way an application contemplated under the
Limitation Act. It is a reminder to the Court
that something which the Court is obliged to do
has not been done and so, such an application,
is not governed by any provision of the
Limitation Act. When once the rights of the
parties have been finally determined in a
preliminary decree, an application by a party
thereto or the legal representatives, for
effecting the actual partition in accordance
with the directions contained in the preliminary
decree can never be construed to be an
application within the meaning of the Limitation
Act. It shall be taken to be an application in a
pending suit and therefore the question of
limitation does not arise.
Similar is the view taken by the Single Bench
of High Court of Punjab & Haryana in Naresh Kumar &
Anr. vs. Smt. Kailash Devi & Ors. [AIR 1999 Punjab
and Haryana 102] in which reliance has been placed

upon the decision of High Court of Madras in
Ramanathan Chetty v. Alagappa Chetty [AIR 1930 Mad.
528] in which it was held that until final decree is
passed in a partition suit, limitation will not come
into play because the suit continues, till final
decree is passed. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 4187 OF 2008

VENU Vs PONNUSAMY REDDIAR 

Dated:APRIL 27, 2017

Print Page

Whether limitation for execution of partition decree will commence from date when decree was engrossed on stamp paper?

The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domain, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp paper cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereupon and only thereafter the period of twelve years will begin to run would lead to absurdity. In Yeshwant Deorao Deshmukh v. Walchand Ramchand Kothari [MANU/SC/0033/1950] it was said that the payment of court fee on the amount found due was entirely in the power of the decree holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execution from the very date it was passed.

26. Rules of limitation are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. As abovenoted, there is no statutory provision prescribing a time limit for furnishing of the stamp paper for engrossing the decree or time limit for engrossment of the decree on stamp paper and there is no statutory obligation on the Court passing the decree to direct the parties to furnish the stamp paper for engrossing the decree. In the present case the Court has not passed an order directing the parties to furnish the stamp papers for the purpose of engrossing the decree. Merely because there is no direction by the Court to furnish the stamp papers for engrossing of the decree or there is no time limit fixed by law, does not mean that the party can furnish stamp papers at its sweet will and claim that the period of limitation provided under Article 136 of the Act would start only thereafter as and when the decree is engrossed thereupon. The starting of period of limitation for execution of a partition decree cannot be made contingent upon the engrossment of the decree on the stamp paper. The engrossment of the decree on stamp paper would relate back to the date of the decree, namely, 7th August, 1981, in the present case. In this view the execution application filed on 21st March, 1994 was time barred having been filed beyond the period of twelve years prescribed under Article 136 of the Act. The High Court committed illegality in coming to the conclusion that it was not barred by limitation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3745 of 2002

Decided On: 13.05.2005

Chiranji Lal (D)  Vs. Hari Das (D) by Lrs.

Hon'ble Judges/Coram:

R.C. Lahoti, C.J., Y.K. Sabharwal and G.P. Mathur, JJ.

Citation: AIR 2005 SC 2564

Print Page

Whether a party can be permitted to challenge correctness of preliminary decree in final decree proceeding?

As per Section 97 Code of Civil Procedure, where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Of course, the second Defendant has not filed the appeal against the preliminary decree challenging its correctness. But as pointed out by the learned Counsel for the second Defendant, in the description of the suit properties, Survey No. 988 has not been shown. As pointed out by the High Court, in para No. (13) of the written statement, second Defendant has clearly averred that he is the owner of the adjoining property in Survey No. 988 in which the Plaintiffs and the other Defendants have no right and that the third Defendant is residing in a building belonging to the second Defendant in the said Survey No. 988 on rental basis. In spite of the objections raised by the second Defendant as to the boundaries and description of the suit properties and also claiming right in Survey No. 988 stated to be falling within those boundaries, the Plaintiffs have not amended the description of the suit properties by bringing in Survey No. 988 in the suit property. It is in this context, in their written statement, the Defendants have stated that "the Defendants have no objections to surrender the mortgage right in respect of Plaint B Schedule items.....".

17. Be it noted that two Commissioners namely Mr. K. Ponniah and Mr. Ambrose earlier appointed have inspected the suit properties and filed their Reports stating that the suit properties are not identifiable. Only when Mr. Raveendran Nair, Advocate-Commissioner inspected the suit property, he has noticed that Survey No. 988 is falling within the description of the boundaries stated in the Plaint. Since the description of the suit property did not contain Survey No. 988, the fact that the second Defendant did not prefer appeal against the preliminary decree, cannot be put against the second Defendant. Though the High Court referred to the averments in the written statement as to the claim of second Defendant in Survey No. 988, the High Court did not go into the question as to the entitlement of second Defendant and the confusion regarding the boundaries of the properties.

18. In view of the stand taken by the second Defendant that he is entitled to the adjoining property in Survey No. 988 by virtue of the sale deed of the year 1951 and the consistent objections raised by him to the Commissioner's Report, in our view, in the final decree proceedings, the trial court ought to have directed the parties to adduce evidence to enable the court to ascertain the truth as to the correct description of the suit property and also the right claimed by the second Defendant in Survey No. 988.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 21834 of 2017

Decided On: 15.05.2018

 Selvi  Vs. Gopalakrishnan Nair (D) thr. L.Rs. and Ors.

Hon'ble Judges/Coram:

R. Banumathi and L. Nageswara Rao, JJ.

Citation:(2018) 7 SCC 319

Print Page

Whether abatement of final decree proceeding is set aside if court has permitted prayer for bringing legal heirs on record?

In my considered opinion, having regard to the fact that the present proceedings are, though not the execution proceedings in a strict sense of the term, even then, they are the Final Decree proceedings, in which the shares of the parties in a Partition Suit are determined and partitioned. In such situation, when during the pendency of that proceeding, husband of the Petitioner has expired, then, as held by the Apex Court in the above-said Judgment, the Trial Court should not have adopted such a technical approach of insisting on the application for setting aside the abatement. The very fact that the Applicant was seeking her impleadment in the proceedings as legal heir of her husband, indirectly, represents that she was also requesting for setting aside the abatement, if any has occurred, against her husband. Hence, the impugned order passed by the Trial Court, by adopting the technical approach of insisting on separate application for setting aside the abatement, needs to be set aside; considering the legal position enunciated above, the nature of litigation itself and the fact that such application was filed in the Final Decree proceedings.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 57 of 2016

Decided On: 28.02.2018

 Anuradha Vasantrao Ghorpade Vs. Sayajirao Tatyasaheb Ghorpade and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.
Citation: 2018(3) MHLJ 687

Print Page

When application of final decree will be barred by limitation?

The only contention put forth by the learned counsel for the appellant before this Court is that the Application filed by the plaintiff for grant of final decree itself is barred by limitation. Though the preliminary decree was passed on 23.10.2003, the Application was filed only on 1.6.2009, which is barred by limitation. As specified under Article 137 of the Limitation Act, three years period is given for filing an application for final decree. Whereas final decree application has been filed only on 1.6.2009 beyond three years, which is barred by Limitation. Hence, it is the contention of the learned counsel for the appellant that the application for a final decree itself is barred by limitation, passing of final decree cannot be sustained. According to the learned counsel the right to apply for final decree proceedings arose immediately after the period of two months which was granted by the trial Court for the defendant to pay the amount, which has expired on 23.12.2003 itself and plaintiff ought to have applied for a final decree within a period of three years i.e. on or before 23.12.2006. Whereas, this application has been filed only on 1.6.2009 which is clearly barred by limitation.

It is well settled that Application for final decree is governed by the residuary Article 137 of the Limitation Act, in which an Application for final decree is to be filed within three years from the date when the right to apply accrues. If the right to apply for final decree had accrued to the plaintiff on default being committed by the defendant for payment of the decreetal amount. An Application for final decree ought to have taken out within a period of three years as specified under Article 137 of the Limitation Act. In this case, Application for final decree itself has been filed on 01.06.2009, i.e. Beyond the period of limitation of three years. Right to apply for final decree accrued to the plaintiff in this case is on the expiry of the two months time granted to the defendant for payment of decretal amount, by the trial Court in the preliminary decree dated 23.10.2003. Therefore, right to file Application for final decree accrued in the month of December 2003 itself and the Application for final decree ought to have been taken out within three years i.e., on or before 23.12.2006. Whereas in this case, the Application for final decree as could be seen from the lower Court records, was filed on 01.06.2009, much beyond the period of limitation, without filing an application to condone the delay.

7. Further, in the Application for final decree, there was no explanation whatsoever pleaded, for the delay in filing such application and no evidence whatsoever has been led to satisfy the Court that he had sufficient cause for not preferring the Application within the period of limitation. 

IN THE HIGH COURT OF MADRAS

A.S. No. 809 of 2010 and M.P. No. 1 of 2010

Decided On: 10.04.2017

 L.K. Raju Vs. S.N. Samiappan

Hon'ble Judges/Coram:

N. Sathish Kumar, J.

Citation: AIR 2017 (NOC) 903 MAD

Print Page

Whether final decree for partition can be challenged if preliminary decree is not challenged?

Preliminary decree is undoubtedly an appealable decree. Section 97 of CPC is in the following terms:

"97. Appeal from final decree where no appeal from preliminary decree.- Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree."

5. The Apex Court had an occasion to consider the provision of Section 97, CPC in Mool Chand v. Dy. Director, Consolidation, MANU/SC/0507/1995 : (1995) 5 SCC 631 and explained the legal position in the following manner:

"26. Thus, if an appeal is not filed against the preliminary decree and its correctness is not challenged, it becomes final and the party aggrieved thereby will not be permitted to challenge its correctness in an appeal against final decree.

27. The Privy Council in Ahmed Musaji Saleji v. Hashim Ebrahim Saleji MANU/PR/0001/1915 : AIR 1915 OC 116 held that failure to appeal against a preliminary decree would operate as a bar to raising any objection to it in an appeal filed against final decree. This Court in Venkata Reddi v. Pothi Reddi MANU/SC/0024/1962 : 1963 Supp (2) SCR 616: AIR 1963 SC 992 has held that the impact of Section 97 is that the preliminary decree, so far as the matters covered by it are concerned, is regarded as embodying the final decision of the court passing that decree. It observed as under:

"A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, insofar as the matters dealt with by it are concerned, be regarded as embodying ... the final decision of the court passing that decree."

This decision was relied upon in Gyarsi Bai v. Dhansukh Lal MANU/SC/0251/1964 : AIR 1965 SC 1055: (1965) 2 SCR 154 in which it was observed as under:

"It is true that a preliminary decree is final in respect of the matters to be decided before it is made.... It is indisputable that in a mortgage suit there will be two decrees, namely, preliminary decree and final decree, and that ordinarily the preliminary decree settles the rights of the parties and the final decree works out those rights."

6. In the instant case, the petitioner, admittedly, did not challenge the preliminary decree passed by the trial court. Even when the trial court asked him to produce the Gift Deed in question also, he failed to do so. The effect of Section 97 is that the preliminary decree so passed by the trial court, in so far as the matters covered by it is concerned, is regarded as embodying the final decision of the court passing the decree. There is, therefore, no improper exercise of jurisdiction by the learned Civil Judge in rejecting the series of application filed by the petitioner. Apparently, the petitioner is making a last ditch effort to stall the proceedings lawfully conducted by the trial court so that the respondent is deprived of the fruit of his litigation.

IN THE HIGH COURT OF TRIPURA AT AGARTALA

CRP No. 116/2016

Decided On: 19.01.2017

Pranballab Debnath
Vs.
 Minati Debnath and Ors.

Hon'ble Judges/Coram:T. Vaiphei, C.J.

Citation: AIR 2017 Tripura 22

Print Page

Guidelines for appointment of commissioner in case of partition of property

"The  reliance is  placed  upon the  decision  of  the  Apex
Court in the case of Shub Karan Bubna @ Shub Karan
Prasad Bub  vrs. Sita Saran Bubna and ors, reported in
AIR 2009 SC (Supp) 2863, to urge that the Commissioner,
in case of house property has to be appointed to effect the
partition by metes and bounds.   Upon submission of the
report by the Commissioner, the Court has to carry further
the proceedings and hearing the parties upon the report of
the   Commissioner. 
Decision of the Apex Court cited supra has laid down the
guidelines   in   paragraph   9.2   in   regard   to   the   immovable
property and the partition.   The said portion is reproduced
below. 
"9.2)   In   regard   to   immovable   properties   (other   than
agricultural   lands   paying   land   revenue),   that   is
buildings, plots etc. or movable properties:
(i) where the court can conveniently and without further
enquiry make the division without the assistance of any
Commissioner, or where parties agree upon the manner
of   division,   the   court   will   pass   a   single   decree
comprising the preliminary decree declaring the rights

of several parties and also a final decree dividing the
suit properties by metes and bounds. 
(ii) where the division by metes and bounds cannot be
made   without   further   inquiry,   the   court   will   pass   a
preliminary decree declaring the rights of the parties
interested in the property and give further directions as
may be required to effect the division. In such cases,
normally   a   Commissioner   is   appointed   (usually   an
Engineer,   Draughtsman,   Architect,   or   Lawyer)   to
physically   examine   the   property   to   be   divided   and
suggest the manner of division. The court then hears
the parties on the report, and passes a final decree for
division by metes and bounds.
The   function   of   making   a   partition   or   separation
according   to   the   rights   declared   by   the   preliminary
decree,   (in   regard   to   non­agricultural   immovable
properties   and   movables)   is   entrusted   to   a
Commissioner, as it involves inspection of the property
and examination of various alternatives with reference
to   practical   utility   and   site   conditions.   When   the
Commissioner   gives   his   report   as   to   the   manner   of
division,   the   proposals   contained   in   the   report   are
considered by the court; and after hearing objections to
the   report,   if   any,   the   court   passes   a   final   decree
whereby   the   relief   sought   in   the   suit   is   granted   by
separating the property by metes and bounds. It is also
possible   that   if   the   property   is   incapable   of   proper
division,   the   court   may   direct   sale   thereof   and
distribution of the proceeds as per the shares declared."
6] Without   following   the   aforesaid   guidelines,   the
trial   Court   has   passed   an   order   directing   the   Court
Commissioner to deliver the possession of the property to the
parties concerned upon preparing the report.  This is not the
method which is contemplated by the aforesaid guidelines
laid down by the Apex Court.  After submission of the report
by the Court Commissioner, the parties are to be given an
opportunity to raise objection and thereafter the final decree

proceedings can be concluded after hearing the parties.  In
view of above, the order impugned to the extent it directs the
Court Commissioner to deliver the possession to the parties
concern cannot be sustained and the same will have to be
set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4758 OF 2016 

Latabai Subhashrao Dahake, V Jayant Punjaji Takarkhede,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM: R. K. DESHPANDE, J.
    DATE     : 17th OCTOBER 2016
Citation: 2017(3) ALLMR 49

Print Page

Whether court can give possession of property to decree holder even if final decree is not passed?

Mr. Parchure, the learned advocate for the respondent No. 2 (original decree-holder) conceded before me that there was no final decree passed by the Court which could justify the execution. What he urged before me was that though the final decree was not prepared by the trial Court, still all the preliminaries were complete, inasmuch as the Commissioner was appointed and he had submitted his report. Not only that, but the objection raised by the contesting parties were also considered by the Court and the Court expressed its views regarding the report submitted by the Commissioner. What he urged before me was that eventually the Court was bound to pass a decree in pursuance of the Commissioner's report, though in fact no decree was passed. It was his contention, that the Court has practically taken a view relying on the report of the Commissioner that the ground floor should be allotted to the decree-holder. What the trial Court did, according to him, was only to expedite the matter and put the decree holder in possession of the ground floor, particularly when the decree-holder was occupying only the tenanted premises. What he wanted to say before this Court was that, there was merely an irregularity and not an illegality. I find myself unable to accept this argument, because according to me it is a clear case where the trial Court has acted without jurisdiction in entertaining the execution application without any decree. In fact, the order issuing warrant of possession and the further executing warrant of possession, has been completely ultra vires, particularly when no decree justifying this execution was passed till then. Mr. Parchure, the learned advocate for the respondent 2 wanted this Court to take purely equitable view of the matter. It will be hard for this Court to close its eyes to the bald realities which prevailed before the executing Court. The over-enthusiasm not only of the decree-holder, but equally of his advocate to put in the execution application even in the absence of the decree and then to push it further, are all the things which cannot even be imagined of. In my view, the whole process right from accepting the execution application to issuing warrant and then execution of the warrant, has been without jurisdiction. 

Bombay High Court

Vishwasrao vs Ushabai And Anr. on 11 February, 1987

Equivalent citations: AIR 1988 Bom 392, 1987 (1) BomCR 707

Bench: S Ratnaparkhi

Print Page

Distinction between decree in mortgage suit and in partition suit

The three decisions relied on by the petitioner (referred to in para 3 above) are not relevant for deciding the issue arising in this case. They all relate to suits for mortgage and not partition. There is a fundamental difference between mortgage suits and partition suits. In a preliminary decree in a mortgage suit (whether a decree for foreclosure under Rule 2 or a decree for sale under Rule 4 of Order 34 of the Code), the amount due is determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non payment within the time stipulated is also specified. A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non payment of the amount. When the amount is not paid the plaintiff gets a right to seek a final decree for foreclosure or for sale. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court. In fact several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree. A preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus the application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds. Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit. Consequently an application for a final decree in a mortgage suit is different from an application for final decree in partition suits.

Supreme Court of India

Shub Karan Bubna @ Shub Karan ... vs Sita Saran Bubna & Ors on 21 August, 2009

Bench: R.V. Raveendran, B. Sudershan Reddy

Reportable

Citation: 2010 (79) ALR 144, 2010 2 AWC(Supp)1325SC, JT2009(11)SC583, 2010(1)KCCR577, (2009)8MLJ921(SC), 2009(12)SCALE259, (2009)9SCC689, [2009]14SCR40

Print Page

Leading judgment on partition of joint family property

It is clear from the decisions in Sai Reddy (supra), Ganduri

Koteshwaramma (supra) and Prema (supra) that a partition of the

Hindu Joint Family – that crystallizes each member’s interest, and

thus makes the interests immune to further changes in the law – can

only take place in the manner prescribed by the HSA. A deemed

partition under the proviso to Section 6, HSA is not an actual partition

that crystallizes the interest of all members of the HUF, but only a

legal construction introduced by the legislature to determine how the

interests of the deceased would devolve upon his heirs if a Class I

female relative is alive. The purpose of this fiction of deemed partition as opposed to following the simple rule of survivorship otherwise) is

that Class I female heirs also receive a share in the coparcenary

property of the deceased male, as they would otherwise be excluded

(not being coparcenors themselves, pre the 2005 Amendment). To

argue that such deemed partition crystallizes the interest of the

daughters finally, and that any rights accruing to them at a later stage

which grant an interest in the coparcenary property are unenforceable,

is contrary to the terms and the spirit of the proviso to Section 6 as it

existed before the 2005 Amendment and the letter of the amendment

itself.

Sai

Reddy

Koteshwaramma

(supra),

Prema

(supra)

and

Ganduri

(supra) have all consistently held that the mere

severance in status, sought to be brought about by the institution of a

partition suit, does not result in immutable shares. These decisions

also took note of Phoolchand & Anr v. Gopal Lal AIR 1967 SC 1470

and even an older decision (of the Privy Council) in Jadunath Roy and

Ors. v. Parameswar Mullick and Ors., AIR 1940 PC 11, where it was

held that even after a preliminary decree in a partition suit is made, the

Court is not only powerless, but has the duty to reflect later

developments, which could necessitate re-adjustment of shares (of the

parties) on account of fluctuation in the coparcenary or the joint

family.

33.

From another and more fundamental perspective, if the

fluctuation of interests continued between the male coparcenors (the

brothers) – after the death of Bakshi Ram in 1960, and a division of

his interest to his sons and daughters – there appears no reason why

the daughter’s interest should be foreclosed. They continued to remain

members of the HUF (though not coparcenars), and thus entitled to

avail of any rights that accrued in their favour as female members of

the family, specifically the 2005 amendment in this case. In this case,

till date no final decree has been passed, and neither has any registered

partition deed been placed on record or relied upon by any of the

parties. Accordingly, the amended Section 6 of the HSA is applicable.

The 2005 amending act, thus, is unambiguous, that no past partition or testamentary disposition of property is to be affected or reopened, in order to include the newly created shares of female members of the HUF in the coparcenary. The intention of Parliament was not to create chaos by reopening previous family settlement, but rather, to indicate that for all future actions, the rules of succession, and not survivorship, would operate in default, and further, that female members would be entitled to share just as their male counterparts. Equally, however, the amending act clarifies what is meant by 'partition' in terms of Section 6, i.e. "any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court." Accordingly, only those partitions made by the execution of a duly registered partition deed or a partition effected by a decree of a Court, i.e. partitions recognized by Section 6 as valid, which have occurred before the cut-off date identified, are saved from the operation of the amended Section 6, which would, if operative, require a redistribution of shares within the HUF. Having defined the expression 'partition' in Section 6, Parliament clarified which partitions are left unaffected by the amendment, and those that are susceptible to this change in the statute, giving the Courts clear and unambiguous direction in this regard. Thus, if a partition, as envisaged under the explanation to Section 6(5) occurred before 20.12.2004, then only may the Courts ignore the amended Section 6.

25. Crucially, since the rights and shares of the parties are decided as on the date of partition, it is important to determine the date of partition. First, as discussed above, the notion that a partition occurs as on the date of the death of a male member, and shares crystallize into vested rights at that point in time, as held by the learned Single Judge, is not the correct approach. That event (i.e. the death) only determines how that person's share will be divided amongst the family members (either by survivorship or by succession), rather than effecting any broad-based changes in the family holdings or effecting a partition inter se that would hold against subsequent changes in the family composition or changes in the law. Secondly, neither is the proposition that the shares are defined at the time of filing of the suit for partition correct. Rather, the HUF, and specifically, the coparcenary, continues even after the filing of the suit. The filing of a suit by itself does not mean that a partition has taken place, until a decree of Court effects partition, or a registered deed of partition is signed inter se the parties. Accordingly, the death or birth of family members during the pendency of a suit quite obviously will affect the shares in partition. Similarly, any change in law during the pendency of the suit, as for example is the case with Section 6 of the HSA, would affect the ultimate shares of the parties. A contrary conclusion would not only fly in the face of the definition of 'partition' in Section 6(5), but would also mean, for example, that no partition suit can be withdrawn after it is filed, a proposition which has been rejected on various occasions.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 31.01.2014

RFA (OS) 11/2010, C.M. NO. 1950/2010

SMT. SWARAN LATA AND ORS. Vs SHRI KULBHUSHAN LAL AND ORS.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT

HON'BLE MR. JUSTICE NAJMI WAZIRI

 Citation: AIR2014Delhi86, 210(2014)DLT393, 2014(141)DRJ205

Print Page