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 accept a compromise petition if the party has not given authority to his advocate to compromise the case through a special Vakalatnama?

 The third question that arises for our consideration in context with the legality and validity of the settlement is whether the learned advocate appearing for the cross-objector i.e., Defendant No. 2 could have signed the compromise petition without an express consent. It is an imperative duty of the Court to ascertain the genuineness and lawfulness of the compromise deed. Indisputably, in the case on hand, the First Appellate Court had neither recorded the statements of the parties in the Court nor had made any inquiry into the terms of the settlement. It is in such circumstances that the High Court in its impugned order has observed that the Compromise Petition was signed by the advocate without any express authority or without special vakalatnama executed in favour of the advocate. In fact, the authority was expressly curtailed in the compromise deed. {Para 100}

103. Almost six decades back, the Madras High Court speaking through Justice Ramaswami (as His Lordship then was) in the case of Govindammal v. Marimuthu Maistry and Ors. reported in MANU/TN/0103/1959 : AIR 1959 Mad 7 had sounded the note of caution observing as under:

5.... The decisions appear to be fairly clear that even in cases where there is no express authorization to enter into a compromise, under the inherent authority impliedly given to the Vakil he has power to enter into the compromise on behalf of his client. But in the present state of the clientele world and the position in which the Bar now finds itself and in the face of divided judicial authority and absence of statutory backing prudence dictates that unless express power is given in the vakalatnama itself to enter into compromise, in accordance with the general practice obtaining a special vakalatnama should be filed or the specific consent of the party to enter into the compromise should be obtained. If an endorsement is made on the plaint etc., it would be better to get the signature or the thumb impression of the party affixed thereto, making it evident that the party is aware of what is being done by the Vakil on his or her behalf.

104. Thus, in view of the aforesaid discussion, we hold that the High Court committed no error in holding that the settlement between the Defendant Nos. 1 and 2 was unlawful.

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

Print Page

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

Print Page

Whether gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners void?

 Moreover, under Hindu Law, the gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners is void.

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

Print Page

Can the court declare the compromise decree invalid if consideration for the alleged compromise was inadequate and there was variance between the agreement and compromise petition?

 

We shall now look into the circumstances, as highlighted by the learned Senior Counsel appearing for the Defendant No. 2, rendering the settlement agreement dated 28.03.1991 invalid and not binding Under Order XXIII Rule 3 of the Code of Civil Procedure:

First, the alleged compromise agreement has admittedly not been signed by the Plaintiff who concededly has a share in the property as a coparcener. A written consent of all parties is necessary.

Secondly, a coparcenary undivided property in specie (Plot No. 140) has been allotted to Defendant 2 by Defendant No. 1 over which the Plaintiff also has an interest.

Thirdly, there is variance between the agreement and the compromise petition producing the agreement.

The Variance noted is as follows-

(a) The compromise petition takes in consideration yet another property already purchased by Defendant No. 2 by her own income (Schedule B property) which was not a part of compromise agreement.

(b) The sketch map appended to the petition shows plot No. 1086 and 1085 which for part of plot No. 141 instead of plot No. 140 mentioned in Clause 3 of compromise agreement, and does not indicate any consensus ad idem, therefore, the execution of the compromise agreement becomes unenforceable.

(c) The species of suit property, which was given/provided to Defendant No. 2 in Clause 3 (page 141) of agreement was changed to will be allotted to her in final decree proceeding.

(d) The payment of Rs. 12000 which was to be deposited to court without any caveat in agreement (See para 4 @ 141) was made subject to further orders of the Court in the petition.

(e) There is no express mentioning about the mesne profits in agreement whereas a definite Clause was inserted in the compromise petition.

(f) The easement rights to property of Defendant No. 2 were recognised in agreement and later in petition was altered to that Defendant No. 2 along with others have to file and take steps to easement rights for which the Defendant 1 shall not object.

(h) The agreement provided that the Defendant No. 2 shall sign the compromise petition which was later altered to signing and swearing the affidavit in compromise petition.

Fourthly, the judgment dated 01.08.2000 of the first appellate court accepting the compromise does not make allotment of the property allotted in specie to the Defendant No. 2. The first appellate court has proceeded on the wrong premise that the Defendant No. 2 has surrendered her rights to the Defendant No. 1. The first appellate court was further wrong in specifically noting that the compromise agreement does not cause any prejudice to the rights of the Plaintiff and therefore can be given effect.

Fifthly, the compromise agreement was entered into by beckoning a smaller share to the Defendant No. 2, while she has a larger share in view of Vineeta Sharma (supra). The consideration for the alleged compromise/settlement was therefore inadequate and whole agreement has to fall to the ground due to changed and supervening circumstances effectuated by change in law. {Para 92}

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

Print Page

Must the court entertaining a compromise petition examine whether the compromise was void or voidable under the Indian Contract Act?

 

When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal Under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 43 of the Code.

 {Para 13}

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

Print Page

What is the duty of the court before accepting a compromise petition?

 The present case depicts as to how on February 27, 1991 the court recorded the alleged agreement and compromise in a casual manner. It need not be impressed that Rule 3 of Order 23 does not require just a seal of approval from the Court to an alleged agreement or compromise said to have been entered into between the parties. The statute requires the Court to be first satisfied that the agreement or compromise which has been entered into between the parties is lawful, before accepting the same. Court is expected to apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement arrived at between the parties. It need not be pointed out that once such a petition of compromise is accepted, it becomes the order of the Court and acquires the sanctity of a judicial order. {Para 11}

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

Print Page

Whether the court should accept compromise petition if it is not signed by a party or his Advocate?

  The learned Counsel appearing for the Respondent took a stand that the High Court was justified in taking the view that the suit had been simply withdrawn by the Plaintiff-Appellant Under Rule 1 of Order 23 and it had not been compromised in terms of Rule 3 of the said Order 23; as such there was no occasion for the Appellant to file an application for recall of the said order and for restoration of the suit in question for being heard on merit. From the copy of the petition which was filed on February 27, 1991 it appears that the terms and conditions of settlement and agreement had been mentioned saying that both parties had entered into a compromise because of which the Plaintiff-Appellant had thereafter no connection with the disputed land and Defendant-Respondent shall be deemed to be in possession and the owner of the said disputed land. The prayer made in the said petition also says that the compromise may be ordered to be accepted. On basis of that petition, as already mentioned above, the court passed an order saying that the compromise had been accepted. In the order it has been mentioned that the suit of the Plaintiff be "dismissed as per compromise deed Ex. C". In view of the aforesaid facts and circumstances, it is difficult to hold that by order dated February 27, 1991 the Court allowed the suit to be withdrawn in terms of Rule 1 of Order 23. The order on face of it purported to dismiss the suit of the Plaintiff on basis of the terms and conditions mentioned in the petition of compromise. As such, the validity of that order has to be judged treating it to be an order deemed to have been passed in purported exercise of the power conferred on the Court by Rule 3 of Order 23 of the Code. The learned Subordinate Judge should not have accepted the said petition of compromise even if he had no knowledge of the fraud alleged to have been practised on the Appellant by his counsel, because admittedly the petition of compromise had not been signed either by the Respondent or his counsel. This fact should have been discovered by the Court. In the case of Gurpreet Singh v. Chatur Bhuj Goel [MANU/SC/0032/1987 : (1988) 1 SCC 270 : AIR 1988 SC 400] it has been said: (SCC p. 276, para 10)

Under Rule 3 as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. The court must therefore insist upon the parties to reduce the terms into writing.

The requirement of the petition of compromise being signed by the parties concerned has been considered also in the case of Byram Pestonji Gariwala v. Union Bank of India [MANU/SC/0485/1991 : (1992) 1 SCC 31 : AIR 1991 SC 2234]. It appears the attention of learned Judges was not drawn to the aforesaid case of this Court in Gurpreet Singh v. Chatur Bhuj Goel [MANU/SC/0032/1987 : (1988) 1 SCC 270 : AIR 1988 SC 400]. {Para 10}

 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

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

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

Supreme Court: Precaution to be taken by the court if, in the suit for partition of joint family property filed by a daughter, defence of prior partition is taken

Earlier, an oral partition was permissible, and at the same time,

the burden of proof remained on the person who asserted that there was a partition. It is also settled law that Cesser of Commonality is not conclusive proof of partition, merely by the reason that the members are separated in food and residence for the convenience, and separate residence at different places  due to service or otherwise does not show separation. Several acts, though not conclusive proof of partition, may lead to that conclusion in conjunction with various other facts. Such as separate occupation of portions, division of the income of the joint property, definement of shares in the joint property in the revenue of land registration records, mutual transactions, as observed in Bhagwani v. Mohan Singh, AIR 1925 PC 132, and Digambar Patil v. Devram, AIR 1995 SC 1728.

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.

126. The protection of rights of daughters as coparcener is envisaged

in the substituted Section 6 of the Act of 1956 recognises the partition

brought about by a decree of a court or effected by a registered

instrument. The partition so effected before 20.12.2004 is saved.

127. A special definition of partition has been carved out in the

explanation. The intendment of the provisions is not to jeopardise the

interest of the daughter and to take care of sham or frivolous

transaction set up in defence unjustly to deprive the daughter of her

right as coparcener and prevent nullifying the benefit flowing from the

provisions as substituted. The statutory provisions made in section

6(5) change the entire complexion as to partition. However, under the

law that prevailed earlier, an oral partition was recognised. In view of

change of provisions of section 6, the intendment of legislature is clear

and such a plea of oral partition is not to be readily accepted. The

provisions of section 6(5) are required to be interpreted to cast a heavy

burden of proof upon proponent of oral partition before it is accepted

such as separate occupation of portions, appropriation of the income,

and consequent entry in the revenue records and invariably to be

supported by other contemporaneous public documents admissible in

evidence, may be accepted most reluctantly while exercising all

safeguards. The intendment of Section 6 of the Act is only to accept

the genuine partitions that might have taken place under the

prevailing law, and are not set up as a false defence and only oral ipse

dixit is to be rejected outrightly. The object of preventing, setting up of

false or frivolous defence to set at naught the benefit emanating from

amended provisions, has to be given full effect. Otherwise, it would

become very easy to deprive the daughter of her rights as a

coparcener. When such a defence is taken, the Court has to be very

extremely careful in accepting the same, and only if very cogent,

impeccable, and contemporaneous documentary evidence in shape of

public documents in support are available, such a plea may be

entertained, not otherwise. We reiterate that the plea of an oral

partition or memorandum of partition, unregistered one can be

manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

128. The expression used in Explanation to Section 6(5) ‘partition

effected by a decree of a court’ would mean giving of final effect to

actual partition by passing the final decree, only then it can be said

that a decree of a court effects partition. A preliminary decree

declares share but does not effect the actual partition, that is effected

by passing of a final decree; thus, statutory provisions are to be given

full effect, whether partition is actually carried out as per the

intendment of the Act is to be found out by Court. Even if partition is

supported by a registered document it is necessary to prove it had

been given effect to and acted upon and is not otherwise sham or

invalid or carried out by a final decree of a court. In case partition, in

fact, had been worked out finally in toto as if it would have been

carried out in the same manner as if affected by a decree of a court, it

can be recognized, not otherwise. A partition made by execution of

deed duly registered under the Registration Act, 1908, also refers to

completed event of partition not merely intendment to separate, is to

be borne in mind while dealing with the special provisions of Section

6(5) conferring rights on a daughter. There is a clear legislative

departure with respect to proof of partition which prevailed earlier;

thus, the Court may recognise the other mode of partition in

exceptional cases based upon continuous evidence for a long time in

the shape of public document not mere stray entries then only it

would not be in consonance with the spirit of the provisions of Section

6(5) and its Explanation.

R E P O R T A B L E

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. DIARY NO.32601 OF 2018

VINEETA SHARMA Vs  RAKESH SHARMA 

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 preliminary decree for partition can be executed after delay of thirty years?

Only question raised in the present appeal is with respect to the limitation for execution of preliminary decree for partition. In the instant case, the application for execution of the decree was filed after thirty years of the preliminary decree. That too in the shape for the appointment of an court Commissioner so as to carry out the preliminary decree which has been passed on 23.11.1959. The application for the execution of the decree was filed on 3.10.1989 i.e. after thirty years.

4. In our opinion a preliminary decree for partition crystallizes the rights of parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings. Till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partition as per preliminary decree. Even when application is filed seeking appointment of Commissioner, no limitation is prescribed for this purpose, as such, it would not be barred by limitation, lis continues till preliminary decree culminates in to final decree.

5. The matter is no more res integra. The Division Bench of the High Court of Calcutta in In Bhusan Chandra Mondal v. Chhabimoni Dasi, [MANU/WB/0079/1948: AIR 1948 CALCUTTA 363] considered the question when a preliminary decree was passed in a suit for partition in courts, the court consider the applicability of Article 181 of the Limitation Act, 1908 (in short 'the old Act') the court has laid down thus:

(6) Article 181 is the residuary Article relating to applications. In a mortgage suit it has been held that the application for a final decree has to be made within 3 years by reason of Article 181, Limitation Act. But those decisions are not helpful because Order 34 Rule 4 Code of Civil Procedure expressly requires the mortgagee to make an application for a final decree, either for foreclosure or for sale. In a suit for partition and/or accounts a party need not make an application for making the decree final. After the preliminary decree is in such a suit has been passed it is the usual practice for the Plaintiff to make an application for the appointment of the Commissioner but there were no legal bar in the court appointing the commissioner suo motu and asking the Plaintiff to deposit the commissioner's fee in Court. If he does not deposit the fees any other party to the suit can do so and take upon himself the carriage of the proceedings if the Plaintiff and none of the other parties make the deposit the fact that the court would not be able to dismiss the suit is, however, another matter.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4187 of 2008

Decided On: 27.04.2017

 Venu Vs.  Ponnusamy Reddiar (Dead) thr. L.Rs. and Ors.

Hon'ble Judges/Coram:

Arun Mishra and Amitava Roy, JJ.

Citation: (2018) 15 SCC 254

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