Bombay HC: Whether a suit for partition between heads of all the branches of a joint Hindu property is maintainable even though children of those heads are not added as parties to the suit?

As laid down in the Principles of Hindu Law by Mulla in paragraph No. 332, in a suit for partition, the heads of all the branches are the necessary parties. Though not in so many words expressed by the district court, it was clearly observed that both the branches, of Shivram and Totaram, were duly represented in the suit and consequently, in the operative part, the suit property was directed to be divided in two equal parts and possession of one portion each was to be given to both these branches. It was further observed that the intention of the parties to have a particular relief has to be gathered from the pleadings and it was appropriate that the dispute between the two branches was settled once for all. Even if all the sons of Shivram and Totaram were not the parties to the suit, and though strictly speaking the situation was not covered by Order XLI Rule 33 of the Code of Civil Procedure, having found that there was due representation of both the branches and there could not have been any dispute as to equal share of each of these two branches, the interest of justice was met by decreeing the suit partly and by directing the suit property to be divided in two halves only. Pertinently, the district court had not directed a further division amongst the coparceners inter se from each of the branches. {Para 13}

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 249 of 1992, X.OBJ/41/2022 in SA/249/1992 and CA/1776/1992 in SA/249/1992

Decided On: 22.04.2022

Gumansing Shivram Patil Vs. Bhika Harsing Patil and Ors.

Hon'ble Judges/Coram:

Mangesh S. Patil, J.

Citation: 2022 SCC OnLine Bom 866 : (2022) 6 Mah LJ 177 : (2022) 4 Bom CR 124 : (2023) 1 HLR 528 : (2023) 242 AIC 295,

 MANU/MH/1409/2022

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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.

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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.

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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.

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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.

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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.

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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

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Whether partition suit will abate if legal representatives of deceased are not brought on record?

 At this juncture, this Court worth recall the decisions in Morasa Anjaiah v. Kondragunte Venkateswarlu and other, MANU/AP/0030/1993 : AIR 1993 AP 156 wherein it is held hereunder:

a partition suit does not abate even if legal representatives are not brought on record.{Para14}

 On a careful consideration of the contention advanced on behalf of the Revision Petitioners and also in the light of an established facts that a partition suit does not abate even a legal representatives are not brought on record this Court comes to an inevitable conclusion that the view taken by the trial Court to the effect that I.A. No. 238 of 2000 filed by the Revision Petitioners his hit by a limitation is not quite tune that the principle of law and as such this Court per-forced to interfere with the orders passed by the trial Court and accordingly allows the present Civil Revision Petition in the interest of justice leaving the parties to bear their own costs. {Para 17}

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

C.R.P. (NPD)(MD) No. 2698 of 2001

Decided On: 25.01.2011

 Mariyammal and Ors. Vs. S. Mariyappan and Ors.

Hon'ble Judges/Coram:

M. Venugopal, J.

Citation: MANU/TN/0551/2011

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When plaintiff in partition suit should not claim the cancellation of the alienations?

  It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co-sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations. {para 15}

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

Civil Appeal No. 2592 of 2022 

MRS. UMADEVI NAMBIAR Vs THAMARASSERI ROMAN CATHOLIC DIOCESE 

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Whether partition suit filed on behalf of minor will abate on his death?

 It remains to consider one other argument advanced on behalf of the appellants. It was urged that the cause of action for a suit for partition by a minor was one personal to him, and that on his death before hearing, the suit must abate on the principle of the maxim, action personal is moritur cum persona, But that maxim has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for property, the rule in question has no application to it. That was the view taken in Rangasayi v. Nagarathnamma [1933] I.L.R. 57 Mad. 95 at pp. 137-138 and in Mandliprasad v. Ramcharanlal I.L.R. [1947] Nag. 848 at p. 871, and we are in agreement with it.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 326 of 1955

Decided On: 04.09.1958

Kakumanu Peda Subbayya  Vs. Kakumanu Akkamma 

Hon'ble Judges/Coram:

A.K. Sarkar, P.B. Gajendragadkar and T.L. Venkatarama Aiyyar, JJ.

Author:T.L. Venkatarama Aiyyar, J.

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Whether in partition suit plaintiff is entitled to get mesne profits and from which period?

In suit for partition plaintiff can claim mesne profits. the plaintiff must take the joint family property as it exists at date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation.

Madras High Court

D. Nataraja Achari vs Balambal Ammal on 13 March, 1979

Equivalent citations: (1979) 2 MLJ 234

Author: V Ratnam

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When court should refuse to issue letter of administration and relegate parties to remedy of partition suit?

 It is settled principle of law that the Court will not allow its time and resources to be taken by a proceeding which is to ultimately abort. (See Liverpool & London S.P. & I Asson. Ltd. Vs. M.V. Sea Success I MANU/SC/0951/2003 : (2004) 9 SCC 512 and ITC Ltd. Vs. Debts Recovery Appellate Tribunal MANU/SC/0968/1998 : (1998) 2 SCC 76). I do not see any reason as to why the petitioner is not interested in filing a suit for partition instead of flogging this proceeding, which will not serve any purpose for either of the parties. In a partition suit, directions against Banks with whom the deceased may have accounts, regarding release of the amount, can always be issued. The scope of an Administration suit clearly is to collect the assets of the deceased to pay off the debts and other charges and to find out what is the residue of the estate available for distribution amongst the heirs of the deceased. The petitioner in the present case has not explained as to what estate of the deceased has to be collected and from whom and what administration thereof is required. Rather the lis to be adjudicated between the parties is of partition of the estate. A suit for partition is distinct from an administration suit. Though administration of the estate may ultimately after accounts are taken also entail partition but where it is found that there is no need for administration and what is in effect sought is partition only, the Court would be entitled in exercise of discretion under Section 298 supra to refuse the grant of Letters of Administration and to relegate the parties to the remedy of partition.

IN THE HIGH COURT OF DELHI

Test. Cas. 54/2010, I.As. No. 9942/2010 and 6191, 6192,15409 and 19685/2011

Decided On: 22.05.2013

 Shubhra Singhal Vs.  State and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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

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: 2019(1) MHLJ 596

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Whether court can permit addition of third party in partition suit?

At this juncture it would be relevant to extract para 6 of the order of this Court dated 27.01.2009 made in C.R.P. No. 3438 of 2008 while allowing the impleading petitions of the revision petitioners, wherein this Court has held as follows:

"I would like to recollect and call up, the common or cardinal Principle of law that in partition suits, even third parties could be allowed to be impleaded as parties so that whatever shares the third parties acquired in the suit property from the co-sharers, they would be able to work out their equities. Such third parties cannot put forth any new plea, but only pray for equities and nothing more".

IN THE HIGH COURT OF MADRAS

CRP(PD) No. 1308 of 2013 and M.P. No. 1 of 2013

Decided On: 25.01.2017

 M. Ammasayappan and Ors. Vs. Muthusamy and Ors.

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When plea that suit is barred by limitation is not tenable in suit for partition?

Article 110
deals with the suit by a person excluded from a joint family
property to enforce a right of share therein and the period of
limitation prescribed is of 12 years from the date when the
section becomes known to the plaintiff. 
17] In the decision of the Apex Court in the case of
Md. Mohammad Ali vrs. Jagdish Kalita and others,  reported
in  (2004) 1 SCC 271,   the Court was concerned with the
applicability of Article 65 of the Limitation Act and it was held
that the plaintiff will succeed if he proves his title over the suit
property and it would be for the defendant to plead and prove
the plea of adverse possession to defeat the claim of the

plaintiff. This decision has been followed by the Apex Court in
the case of Mohammadbhai Kasambhai Sheikh and ors  vrs.
Abdulla Kasambhai Sheikh,  reported in  (2004) 13 SCC 385,
wherein it is held that unless the defendant raises defence of
adverse possession to  claim for a  share by a heir to be
ancestral property,  he cannot also raise an issue relating to
limitation of the plaintiff's claim.   The Court held that in the
absence of such plea of adverse possession being raised in
the written statement, the plea of limitation was not available.
Both these decisions are applicable to the facts of this case
and in the absence of any plea of adverse possession by any
of the parties, the suit cannot be dismissed as barred by
limitation.
18] Article 110 of the Limitation Act relied upon by
Shri Mardikar deals with the suit by a person excluded from a
joint family property to enforce a right to share therein. In the
present case,  the shares are devolved upon the parties to
the   suit   in   accordance   with   Section   8   of   the   Hindu
Succession Act and it is not a suit where the partition has
already taken place and the plaintiff is excluded from the joint
family   property.     It   is   also   not   a   suit   for   enforcement   of

partition   and   separate   possession,   as   contemplated   by
Section 6 of the Hindu Succession Act, though it is styled as
such. The decision has no application to the facts of this
case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 567 OF 2004 
Pandurang Sitaram Pande,

V
 Avinash Ramkrishna Pande,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM: R. K. DESHPANDE, J.

Dated:   04.08.2016
Citation:2016(6) ALLMR 273

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Whether assignee can claim impleadment in suit for partition if property was assigned contrary to order of court?

As said before, the assignment is by means of a registered deed. The assignment had taken place after the passing of the preliminary decree in which Pritam Singh has been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable property worth more than hundred rupees, if being assigned, was required to be registered. That has instantly been done. It is per se property, for it relates to the immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable difference whether property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prelavent public policy, When the Court intends a particular state of affairs to exist while it is in seizin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All what is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit. On that basis, there was no cause for going into the question of interpretation of paragraphs 13 and 14 of the settlement deed. The path treaded by the courts below was, in our view, out of their bounds. Unhesitatingly, we upset all the three orders of the courts below and reject the application of the assignees for impleadment under Order 22 Rule 10 C.P.C.

Supreme Court of India

Surjit Singh & Ors. Etc. Etc vs Harbans Singh & Ors. Etc. Etc on 6 September, 1995

Equivalent citations: 1996 AIR 135, 1995 SCC (6) 50

           
BENCH:
PUNCHHI, M.M.
MANOHAR SUJATA V. (J)

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Whether in partition suit court can carve out only share of plaintiff?

The learned Judge was right when he proceeded on the assumption that the property continued to be with the joint family. It is on this basis, he rightly came to the conclusion that the plaintiff had approximately 1/3rd share in the property. But he was wholly in the error when he held that since there are no other pleadings on behalf of other co-owners, he could ignore their share. In a partition suit, every co-owner, whether a plaintiff or defendant, is as good as a plaintiff and no Court could say that only the share of the plaintiff would be carved out, and the rest of the owners should fight separate battle.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 206 of 1988 in Special Civil Suit No. 230 of 1987

Decided On: 28.09.1988

 Vijaysingh Rajasingh Varma Vs. Vishinkumari Udaysingh Varma (Smt.) and Ors.

Coram:
Hosbet Suresh, J.

Citation: 1989 (2) Bom CR 139

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Landmark Judgment on partition suit

 We sum up the principles laid down by the Supreme Court in the above judgments thus :

(i) In a suit for partition, at the first stage, the court decides whether the plaintiff has a share in the suit property and is entitled to division and separate possession.

This position is exercise of judicial function and results in a decree under Order XX Rule 18(1) termed as preliminary decree under Order XX Rule 18(2) of CPC.

The decree is termed a preliminary decree when further proceedings have to be taken before the suit can be completely disposed of. It is a final decree when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. (Ref. Para 7, 10 - Shub Karan Bubna)

(ii) If the court can conveniently and without further enquiry, make the division without assistance of the commissioner or upon agreement of the parties or where the parties agree upon the manner of division, the court can pass a composite decree comprising the preliminary decree declaring the rights of several parties as well as the final decree dividing the properties by metes and bounds in regard to immoveable properties. (Ref : Shub Karan Bubna, para 18.2 and 20)

(iii) In order to determine whether a decree in a suit was a preliminary decree or a final decree or a decree partly preliminary and partly final, reference has to be made to the decree itself. Where it is a compromise decree, the answer to this issue has to be gathered from the "intention of the parties". The intention would be gathered from the facts which would indicate as to whether anything remained to be done for the future on the question of partition of properties jointly held. (Ref : Rachakonda Venkat Rao, paras 19 and 22.)

(iv) If a division by metes and bounds cannot be made without further enquiry, then first, the preliminary decree shall be passed and thereafter a commissioner is appointed to physically examine the property to suggest manner of division. (Ref : Shub Karan Bubna, para 18.2)

(v) Consequential division by metes and bounds is a ministerial or administrative act requiring physical inspection, measurements, calculations and consideration of various permutations/ combinations/alternatives of division which is referred to the collector/local commissioner under Order XXVI. This duty in the normal course of the proceedings before the court is a continuation of the preliminary decree.

(vi) If only a preliminary decree is passed at the first stage, no separate application is necessary for passing of a final decree. (Ref: Shub Karan Bubna and Bimal Kumar)

(vii) On receipt of the report of the commissioner and hearing objections thereto, the court passes the final decree whereby the relief of separating the property by metes and bounds is granted. (Ref : Shub Karan Bubna, para 18.2)

(viii) In a partition suit, a final decree can be in the form of a decree passed on a compromise between the parties in its entirety leaving nothing to be done in the future.(Ref : Bimal Kumar, paras 26 and 28)

(ix) In a partition suit, under Section 2 of the Partition Act, having regard to the nature of the property or large number of shareholders or in other special circumstance, if it appears to the court that the division of the property cannot reasonably or conveniently be made and that a sale of the property would be more beneficial, it can direct sale of the property and distribution of the proceeds as per shares declared. In addition, the court may be requested to direct sale by shareholders, interested individually or collectively to the extent of one moeity or upwards. (Ref : Shub Karan Bubna, para 18.2 and R. Rmamurthi Iyer, para 8)

(x) It is not obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds. It should only, "appear" that it is not so capable of division. Parties may jointly agree to such dispossession of the property. (Ref : R. Ramamurthi Iyer, para 13)

(xi) The request from the shareholder (s) for sale of the property does not have to be in the nature of a formal prayer. (Ref : Rani Aloka Dudhoria, para 48; R. Rmamurthi Iyer, para 13) If a party or co-sharer asks for sale of a property under Section 2 of the Partition Act, it is the duty of the court to order the valuation of the shares (Ref.: Malati Ramachandra Raut).

(xii) The words employed in Section 3(1) only require the shareholder has to merely inform the court or to notify to it that he is prepared to buy at a valuation the share of the party asking for sale. No formal application for the purpose is necessary (R. Ramamurthi Iyer).

It is obligatory upon the court to offer to sell the same to the shareholder(s) who seek to buy the shares of the other party in terms of Section 3 at the price determined upon such valuation. The court has no discretion or option or choice in this matter. (Ref : Malati Ramchandra Raut, para 9; R. Ramamurthi Iyer, paras 8 and 11)

(xiii) The right of a co-sharer to purchase a property directed to be sold under Section 3 of the Partition Act accrues on the date the co-sharer request the court to sell the property to him. The valuation of the shares has to be made on the date of accrual of this right. (Ref : Malati Ramchandra Raut, para 10)

(xiv) In a partition suit, the plaintiff is not wholly dominus litis. After a shareholder has applied for leave to buy at a valuation under Section 3 of the Partition Act, the plaintiff who requested the court to exercise the power under Section 2 of ordering the sale, cannot withdraw the suit under Order 23 Rule 1 of the CPC. (Ref : R. Rmamurthi Iyer, paras 9 and 10)

(xiii) In partition matters, it is always open to the parties to enter into a fresh arrangement including a decision to be again joint with respect to the properties meaning thereby that they may throw the properties in the common pool once again. (Ref : Rachakonda Venkat Rao, para 21.) 

Delhi High Court

Kusum Kumria And Ors. vs Pharma Venture (India) Pvt. Ltd. ... on 20 October, 2015

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When compromise decree in partition suit can be treated as final decree?

 Applying the principles laid down in the aforesaid authorities, it is graphically clear that in the case at hand, the parties entered into a compromise and clearly admitted that they were in separate and exclusive possession of the properties and the same had already been allotted to them.

It was also admitted that they were in possession of their respective shares and, therefore, no final decree or execution was required to be filed. It is demonstrable that the compromise application does not contain any clause regarding the future course of action. The parties were absolutely conscious and rightly so, that their rights had been fructified and their possession had been exclusively determined. They were well aware that the decree was final in nature as their shares were allotted and nothing remained to be done by metes and bounds. Their rights  had attained finality and no further enquiry from any spectrum -

was required to be carried out. The whole thing had been embodied in the decree passed on the foundation of compromise.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

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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

Bench: Dalveer Bhandari, Dipak Misra

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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

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