Can a court issue a partition decree with the consent of only some of the coparceners?

 

Indisputably, in the case on hand, the Plaintiff has not put her signature on the deed of settlement, which was produced before the High Court in first appeal. The Plaintiff has made herself very clear that she never joined in the settlement between her brother i.e., the Defendant No. 1 and her sister i.e., the Defendant No. 2. On this ground alone, the settlement could be said to be unlawful, being without any written consent of all the parties. In a suit for partition of joint property, a decree by consent amongst some only of the parties cannot be maintained.

{Para 94}

95. In Nityamoni Dasi v. Gokul Chandra Sen reported in MANU/WB/0534/1910 : (1911) 9 Ind Cas 210 (Cal), the Calcutta High Court observed:

... The decree of the Subordinate Judge must be set aside and the whole case retried, because as this is a suit for partition of joint property, a decree by consent amongst some only of the parties cannot possibly be maintain ed.....

96. In Vir Singh and Ors. v. Kharak Singh and Ors. reported in MANU/LA/0229/1924 : AIR 1925 Lah 280, all the proprietors had not assented to the compromise, Moti Sagar, J. observed:

...the alleged compromise not having been assented to by all the proprietors was clearly contrary to law and the Court was, therefore, fully justified in refusing to enforce it....

97. In Taraprasanna Sarkar and Anr. v. Kalikamohan Sarkar and Ors. reported in MANU/WB/0026/1923 : AIR 1924 Cal 80 Mookerjee and Rankin, JJ., held:

...There can be no compromise binding upon, all the parties to a partition suit until and unless all the parties have joined in the compromise:...

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.

Read full Judgment here: Click here

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Whether the court can take into consideration change in the law as well as changes due to subsequent events in the final decree proceeding or appeal in partition suit?

  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. {Para 99}

125. The severance of status may take place from the date of filing of a suit; however, a decree is necessary for working out the results of the same, and there may be a change of rights during the pendency of the suit for allotting definite shares till final decree is passed. There are cases in which partition can be reopened on the ground of fraud or mistake, etc. or on certain other permissible grounds. In appropriate cases, it can be reopened at the instance of minor also.

129. Resultantly, we answer the reference as under:

iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

Supreme Court of India

Vineeta Sharma vs Rakesh Sharma on 11 August, 2020

Author: Arun Mishra

ARUN MISHRA, J,S. Abdul Nazeer J,M.R. Shah J.

Dated:August 11, 2020.
Read full Judgment here: Click here

Citation: 2020 SCC OnLine SC 641,2021(1) MHLJ648.

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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

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Whether court can make sketch map part of partition decree after passing of decree?

 Learned Counsel for the Appellants submits that the Appellants/defendants filed an application on 06.02.2001 praying that the suit may be partitioned in terms of the plan annexed to the application. However, by oversight the said plan was not exhibited. The plan demarcates the common area. The court had passed a decree by consent. Since the plan was not exhibited, difficulties arose for execution of the partition decree. Therefore, the court below has rightly allowed the application. The High Court on certain assumptions has set aside the said order. Learned Senior Counsel appearing for the Respondents submits that three sketch maps have been produced at different stages in the suit. Therefore, the High Court has rightly directed the parties to file a joint petition indicating their intention regarding allotment of their property as per their shares by producing a sketch duly drawn by competent person. This order of the High Court does not call for interference.

5. We have carefully considered the submissions of the learned Counsel appearing for the parties. There is no dispute as to the share allotted by the trial court in favour of the parties. The Plaintiff was allotted 3/5th share and the Defendant was allotted 2/5th share in the suit Schedule property. It is clear that the sketch map relied on by the trial court was produced by the Plaintiff showing the frontal 'A' lot property containing his 3/5th share delineated with yellow border and 'B' lot property showing Defendants' 2/5th share delineated with red border. The application filed by the Plaintiff producing the aforesaid map reads as under:

Most Respectfully Sheweth:

1. That the Plaintiff, as per direction of the Court is submitting a settlement Plan alongwith copy in Court this day marking annexure 'A' to the petition and 2/5th share with red border with a statement.

In the circumstances, it is prayed that on the basis of the said settlement plan, partition of the suit property may be made by the learned Court for ends of justice.

And for this, your Petitioner as in duty bound shall ever pray.

Dated: 06.02.2001

Sd/-

Plaintiff

6. It is clear that the Plaintiff had also produced two other maps on 20.2.2001 and 12.6.2001. The Plaintiff had sought partition of the suit property in terms of the plan produced on 6.2.2001 which is evident from the application referred to above. As such, the Plaintiff cannot be permitted to say that the map produced with the application dated 6.2.2001 was not the map filed by him. It is not possible to give effect to the partition decree without a sketch map of the suit Schedule property. At the time of passing the judgment and decree, the trial court should have made the said map as a part of the decree so that the partition could have been effected as per the said sketch. No party should be allowed to suffer for the error of the court. In the circumstances, the trial court has rightly made the plan a part of the decree for effecting partition. We are of the view that the High Court was not justified in setting aside the said order.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3120 of 2009

Decided On: 19.04.2018

 Subhash Chandra Sen  Vs. Nabin Sain (D) thr. L.Rs.

Hon'ble Judges/Coram:

N.V. Ramana and S. Abdul Nazeer, JJ.

Citation:(2018) 6 SCC 443

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Whether court can direct court commissioner to deliver possession of property in execution of partition decree?

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

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Precaution to be taken by court while granting permanent injunction in partition suit

As observed earlier, the learned trial Court held the parties to be co-sharers, but then proceeded to pass a decree of permanent prohibitory injunction in favour of the plaintiffs which was impermissible in law, because such right would at best be available only till the time the share of the parties is not partitioned i.e. till the time they continued to be co-sharers.

4. Once there is severance of status in partition proceedings and the interest inter se the parties ceases to be joint, then obviously a party would only be entitled to seek protection of the rights over that portion of the land which is allotted to him during the partition proceedings and cannot seek right in anyone else land.

5. Thus, the learned first Appellate Court has committed no irregularity much less illegality by modifying the relief of injunction granted by the learned trial Court by limiting the same till the suit land was partitioned by metes and bounds.

6. The judgment and decree passed by learned first Appellate Court is strictly in accordance with law or else in case the judgment and decree of the learned trial Court is allowed to stand as it is, it would amount to the plaintiffs being permitted to use the land in perpetuity.

IN THE HIGH COURT OF HIMACHAL PRADESH

R.S.A. No. 89 of 2017

Decided On: 02.05.2017

Surat Ram and Ors. Vs. Ramesh Chand and Ors.

Hon'ble Judges/Coram:

Tarlok Singh Chauhan, J.

Citation: AIR 2017 HP125

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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

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What are powers and duties of Tahsildar while executing partition decree?

If an agricultural land is to be partitioned, the partition will have to be made normally by measurement and the measurement is done by Cadestral Surveyor. When Tahsildar or any other Officer subordinate to the Collector is entrusted with the job of execution of partition decree or directs the District Inspector of Land Record or any officer subordinate to him to measure the land and submit a report proposing the partition, such Cadestral Surveyor or the measurement officer is nothing more than a Commissioner appointed under Order 26, Rule 13 of the Code of Civil Procedure. Report of the measuring officer is to be considered by the Tahsildar or the officer executing the partition under section 54 and he has to apply his mind. Tahsildar is not merely a Post Office whereby the communicate of the Collector is to be sent to the District Inspector of Land Record. For the purposes of execution of a partition decree involving an estate subjected to the land revenue, Tahsildar steps into the shoes of the Civil Court executing the decree. Therefore, such officers are under a bounden duty to apply their mind to report about the proposed partition and they cannot refuse to exercise the jurisdiction vested in them. It is true that normally a report of the Commissioner in a partition decree need not be interfered into because the report is based on local enquiry. But the jurisdiction vested in the Court which is in the cases like the case at hand, is with the Tahsildar or the Revenue Officer and this jurisdiction cannot be delegated to the measuring Inspectors. In the instant case, I find that the Tahsildar simply said that he had no powers to do anything. Therefore, he had failed to exercise jurisdiction vested in him by law. He should have considered the objections of the petitioner on merit and given a decision. Since the Tahsildar which is the first Court which was compertent to consider the objections of the petitioner has failed to exercise the jurisdiction vested in him, it would not be necessary to direct the petitioners to avail of the remedy of second appeal to the Collector to which he would otherwise entitled to. It is necessary to direct the Tahsildar to consider the objections put forth by the present petitioner.

Bombay High Court

Khajabhai S/O. Abdula Sahab ... vs Mohammed Ishaq S/O. Abdullasaheb ... on 12 July, 1991

Equivalent citations: 1991 (3) BomCR 581992 (1) MHLJ262

Bench: N Chapalgaonker

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Whether it is mandatory for court to send Decree for partition of agricultural land be sent to collector for partition?

GENERAL DIRECTIONS TO ALL THE CIVIL COURTS

By way of general directions, all the civil Courts are directed to remit, to the Collector, within four months from the date of signing the decree under Section 54 of CPC, all the relevant papers for partition of property or a separate possession of undivided estate assessed to the payment of revenue to the Government, without there being any application or request or prayer for the same; so as to follow the mandate of Section 54 of CPC.

Any application seeking direction to send necessary papers to the Collector, should be disposed of within 30 days from the receipt thereof, treating it as an application filed in the disposed of suit, without opening any independent proceeding in this behalf. Such application should be treated as a request to a Judge or Court to send necessary papers to the Collector for effecting partition under Section 54 of CPC. Such application is really nothing but a request to the Judge or Court to discharge his ministerial duty. In view of this, even no notice to any of the parties to the application is necessary as it is not a petition seeking any adjudication of any of the rights of the parties.

Bombay High Court

Annasaheb Rajaram Nagane And Anr. vs Rajaram Maruti Nagane And Ors. on 21 February, 2001

Equivalent citations: AIR 2001 Bom 303, 2001 (3) MhLj 53

V.C. Daga, J.

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Execution of partition decree by collector-when civil court has jurisdiction to control action taken by collector?

 Having heard the learned Counsel for the petitioner, I find that the learned District Judge could not have dismissed the appeal on the ground that the Civil Court becomes functus officio after it sends the decree for partition and cannot in any circumstances consider whether the Collector has effected partition in accordance with the decretal mandate. The reliance by the learned District Judge on the decision in the case of Lachhiram Jasram (supra) is misplaced. In the case before the Nagpur High Court the Applicant had applied under section 54 and Order XX, Rule 18 of the Code of Civil Procedure to the Court for issuing direction to the Collector to the effect that the partition should be effected in a certain manner, in particular, so as to allot as far as possible entire holdings to the share of the plaintiff. This application has been dismissed. On this fact the High Court took the view that the discretion as to the manner in which the partition is to be held lies wholly with the Collector and the Civil Court is functus officio after it declares the shares of the parties and beyond that it is not concerned with that. The Court observed that in fact the suit terminates so far as the Civil Court is concerned on the passing of the preliminary decree affecting any estate assessed to the payment of revenue to the Crown. These observations were made obviously where anticipatory directions to the Collector were sought to require him to effect partition in a particular manner. This case is not an authority for the proposition that if the Collector has effected partition contrary to the decretal mandate his action is immune from the challenge before a Civil Court. On this question a Division Bench of this Court in Ningappa Balappa and Ors. v. Abashkhan Gouskhan, : AIR1956Bom345 , observed as follows :--

'5. It is true that it has been held in several cases that the Court is not entirely deprived of controlling the action taken by the Collector. But this control is very limited. It is to be exercised only if the Collector contravenes the decretal order or transgresses the law relating to partition or refused to execute the decree. See the cases cited at p. 228 of Sir Dinshaw Mulla 's Code of Civil Procedure, 12th Edition.

BOMBAY HIGH COURT

Reported in : AIR2003Bom314; 2003(1)ALLMR1158; 2003(3)BomCR15; 2003(2)MhLj216

Judge : S.A. Bobde, J.

Decided On : Jan-17-2003

Acts : Code of Civil Procedure (CPC) , 1908 - Sections 54

Case Number : Writ Petition No. 3438 of 1987

 Mahadu alias Mahadeo Baji Bhosale Vs Appaji Gunbarao @ Ganpatrao Bhosale since deceased by his heirs Gangabai Appaji Bhosale and Ors.

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Execution of partition decree by collector-when appeal will lay before revenue authority?

Yet in another case in case of " Baban S/o Shamrao Menghare & another V/s. Madhukar S/o Shamrao Menghare & others" this Court has reiterated the view taken in the case of " Kishan Bhikaji Dalvi (Since deceased through L.Rs. Mohan Kisan Dalvi and others V/s. Krishnabai Maruti Dalvi ", cited supra. This Court in case of " Madhu Naryan Pawar deceased through 

his Lrs. Balwant Mahadu Pawar & others" cited supra has also taken a view that partition of agricultural lands in execution of decree for partition, order passed under Section 54 partitioning the properties, appeal against such order maintainable before the Additional Commissioner (Revenue).

13. In the facts of this case, it is true that the respondent No. 1 may have grievance that the Collector has not followed the provisions of Section 8(AA) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. However, the proper remedy is to file the appeal. It is rightly contended by the counsel for the petitioner that the revenue authority is more competent authority to decide any grievance about non observance and not following the section 8(AA) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.

It is true that the Civil Court can see that, Whether the Collector has followed the decretal mandate or not and to that extent the Civil Court is certainly empowered to do so. However, in the present 

case, the respondent No. 1 did not participate in the proceeding before the Collector, and also did not raised any objection whatsoever and final decree was drawn. Thereafter, the respondent No. 1 filed another Dharkhast No. 50 of 2003. In the facts of this case, the respondent No. 1 should have filed appeal before the competent authority under Section 247 of the Maharashtra Land Revenue Code, if he was aggrieved by the action of the Collector in not properly distributing the shares. Therefore, in my opinion, in the lights of the Judgment in the case of " Paygonda Survgonda Patil & others V/s. Jingonda Surgonda Patil & others " and in case of " Baban S/o Shamrao Menghare & another V/s. Madhukar S/o Shamrao Menghare & others " cited supra, it is appropriate for the respondent No. 1 to file appeal and second Dharkhast No. 50 of 2003 was not maintainable, in the given set of facts. Therefore, impugned Judgment and order dated 16th April, 2004 passed by the learned Civil Judge, Senior Division, Sangamner, Dist. Ahmednagar in Special Dharkhast No. 50 of 2003 is quashed and set aside1

Bombay High Court

2] Adarsha Sahakari Doodh Utpadak vs 6] Tarabai W/O Bharat Gopale on 19 October, 2010

Bench: S. S. Shinde

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Whether limitation for execution of partition decree will not begin to run until decree is engrossed on stamp paper?

 Let us examine the matter from another perspective. Limitation Act has been engrafted in the Statute Book in the year 1963 and the Indian Stamp Act has been brought into existence by the British Parliament in 1899 though, however, the Government of India Adaptation of Indian Laws Order 1937, the Indian Independence Adaptation of Central Acts and Ordinance Order 1948 and the Adaptation of Laws Order 1950 allowed this fiscal statute to remain on the statute book. The legislature while engrafting 1963 Act, it is presumed and there being a golden canon of interpretation of statutes, that it had in its mind the existing Indian Stamp Act before engrafting the provisions under Article 136. A latter statute obviously will have the effect of nullifying an earlier statute in the event of there being any conflict provided however and in the even there is otherwise legislative competency in regard thereto. As regards the legislative competency, there cannot be any doubt which can stand focussed neither there is any difficulty in correlating the two statutes being operative in two different and specified spheres. Enforceability of the decree cannot be the subject matter of Section 35 neither the limitation can be said to be under suspension. The heading of the Section viz., "Instrument not duly stamped inadmissible in evidence etc." (emphasis supplied) itself denotes its sphere of applicability: it has no relation with the commencement of period of limitation. As noticed above 'executability' and 'enforceability' are two different concepts having two specific connotation in legal parlance. They cannot be termed as synonymous, as contended by Mr. Mani nor they can be attributed one and the same meaning. Significantly, the final partition decree, whenever it is drawn bears the date of the decree when the same was pronounced by Court and bit when it stands engrossed on a stamp paper and signed by the judge and this simple illustration takes out the main thrust of Mr. Mani's submission as regards the applicability of the Stamp Act viz-a-vis, the enforceability of the decree. The decree may not be received in evidence nor it can be acted upon but the period of limitation cannot be said to remain under suspension at the volition and mercy of the litigant. Limitation starts by reason of the statutory provisions as prescribed in the statute. time does not stop running at the instance of any individual unless, of course, the same has a statutory sanction being conditional as more fully noticed hereinbefore: the Special Bench decision of the Calcutta High Court in the case of Bholanath Karmakarand others v. Madanmohan Karmakar , in our view has completely misread and misapplied the law for the reasons noted above and thus cannot but be said to be not correctly decided and thus stands overruled. Undoubtedly, the judgment of the Calcutta High Court has been a very learned judgment but appreciation of the legislative intent has not been effected in a manner apposite to the intent rather had a quick shift therefrom by reason where for, the Special Bench came to a manifest error in recording that the period of limitation for execution of a partition decree shall not begin to run until the decree is engrossed on requisite stamp paper.

Supreme Court of India

Hameed Joharan (D) & Ors. vs Abdul Salam (D) By L.Rs. & Ors. on 13 August, 2001

Equivalent citations: AIR 2001 SC 3404, JT 2001 (6) SC 311, 2001 (5) SCALE 163

Bench: A Mishra, U C Banerjee

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What is Duty of collector regarding Execution of partition decree?

 The narration of facts extracted hereinabove unequivocally demonstrate that the decree in question was preliminary with respect to the lands assessable to revenue, all further proceedings were required to be taken before the Collector or any Gazetted officer subordinate to him, to whom the powers were delegated by the Collector as per Section 54 read with Order 20, Rule 18 of C. P. C. When matter goes before the Collector, he has to pass final decree by coming to the conclusion, how the land should be partitioned between the parties and then he has to execute the decree actually by putting the parties in possession of the respective portion allotted to them. The civil Court has no say in the matter as to how the land is to be partitioned between the parties, so as to say, for preparing final decree.

Bombay High Court

Annasaheb Rajaram Nagane And Anr. vs Rajaram Maruti Nagane And Ors. on 21 February, 2001

Equivalent citations: AIR 2001 Bom 303, 2001 (3) MhLj 53

Bench: V Daga

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Whether second suit for partition is tenable if there is decree in first suit for partition?

In the present case, undisputedly there were two earlier partition suits and therefore, legal presumption would be that the entire joint family assets were included in the earlier suits. Since the plaintiffs claim is that Schedule C properties though a part of joint family assets had been left out the burden clearly lies on him to establish that it was joint family property and had been wrongly left out. The evidence on record, as indicated above- clearly shows that the plaintiff has failed to discharge this burden. Hence both from the legal as well as factual aspect the plaintiff's case in respect of Schedule C properties has no substance at all.
In other words, if the person who seeks subsequent partition is found to be responsible for obstructing the finalisation of the actual division of the joint properties by metes and bounds and delivery thereof, he has no locus standi to come forward with a subsequent suit for partition on the ground that the earlier partition decree has not yet been enforced. The plaintiff deposing as P.W. 7 has admitted that the Commissioner had several times gone to effect Takhata-Bandi in respect of the decree of partition suit of 3 of 1948. His plea however, is that since Commissioner has tried to effect Takhatbandi only in respect of the properties of Chaibasa hence he (plaintiff) and his father and brother have been preventing Commissioner from effecting the division and Takhtabandi. Thus there is admission on the part of the plaintiff that he and his father and brother have obstructed the Pleader Commissioner from effecting Takhtabandi. His plea for such obstruct ion is obviously not tenable. The Schedule C properties were not the subject-matter of title suit No. 3 of 1948 and hence whatever may be claimed of the plaintiff in respect of the same, this could be no ground for the plaintiff or his father or brother to obstruct the Pleader Commissioner from effecting division of the properties which were the subject-matter of title suit No. 3 of 1948. Obviously therefore the plaintiff and his father and brother are the persons who put obstruction in bringing to finality the partition decree passed in title suit 3 of 1948 and if they are allowed to prosecute the present partition suit in respect of the Schedules B and D property it will only mean that they are being encourage to take advantage of their own wrongful Conduct. 

Patna High Court

Ram Lakhan Missir vs Pandit Raghunandan Missir And ... on 5 October, 1988

Equivalent citations: AIR 1989 Pat 145

Bench: R N Prasad

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Direction to civil court to sent partition decree to collector for partition of property

By way of general directions, all the civil Courts are directed to remit, to the Collector, within four months from the date of signing the decree under Section 54 of CPC, all the relevant papers for partition of property or a separate possession of undivided estate assessed to the payment of revenue to the Government, without there being any application or request or prayer for the same; so as to follow the mandate of Section 54 of CPC.

Bombay High Court

Annasaheb Rajaram Nagane And Anr. vs Rajaram Maruti 

Nagane And Ors. on 21 February, 2001

Equivalent citations: AIR 2001 Bom 303, 2001 (3) MhLj 53

V.C. Daga, J.

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When partition decree is passed on the basis of compromise,it is final decree?

It is to be borne in mind that the term `compromise' essentially means settlement of differences by mutual consent. In such process, the adversarial claims come to rest. The cavil between the parties is given a decent burial. A compromise which is arrived at by the parties puts an end to the litigative battle. Sometimes the parties feel that it is an unfortunate bitter struggle and allow good sense to prevail to resolve the dispute. In certain cases, by intervention of well-wishers, the conciliatory process commences and eventually, by consensus and concurrence, rights get concretised. A reciprocal settlement with a clear mind is regarded as noble. It signifies magnificent and majestic facets of the human mind. The exalted state of affairs brings in quintessence of sublime solemnity and social stability. In the present case, as the factual matrix would reveal, a decree came to be passed on the bedrock of 

a compromise in entirety from all angles leaving nothing to be done in the future. The curtains were really drawn and -

the Court gave the stamp of approval to the same. Thus, the inescapable conclusion is that the compromise decree dated 03.04.1964 was a final decree.

Supreme Court of India

Bimal Kumar & Anr. vs Shakuntala Debi & Ors. on 27 February, 2012

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What is distinction between preliminary decree and final decree?

A preliminary decree declares the rights or shares of parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of divided property then such inquiry shall be held and pursuant to the result of further inquiry a final decree shall be passed. A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree the rights of the parties are finally determined and a decree is passed in accordance with such determination, which is, the final decree. (See: CPC by Mulla Vol. 1, 1995 Edn., page 21). The distinction between preliminary and final decree is this: a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree incorporating such determination needs to be drawn up which is the final decree.

Supreme Court of India

Renu Devi vs Mahendra Singh And Ors. on 4 February, 2003

Equivalent citations: AIR 2003 SC 1608, 2003 (51) BLJR 699

Bench: R Lahoti, B Kumar

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