Radheshyam Bhartia vs Manju Bhartia & Ors
2021 Latest Caselaw 177 Cal/2

                                            1




                                 IA No. GA 16 of 2018
                              (Old No. GA 3209 of 2018)
                                          In
                                  CS 100038 of 1995
                                (Old CS 365A of 1995)
                         IN THE HIGH COURT AT CALCUTTA
                          Ordinary Original Civil Jurisdiction
                                    ORIGINAL SIDE
                               RADHESHYAM BHARTIA
                                          v.
                               MANJU BHARTIA & ORS.


     For the Plaintiff            : Mr.   Suman Kr. Dutt, Sr. Advocate
                                    Mr.   Rudhajit Sarkar, Advocate
                                    Mr.   Jayanta Sengupta, Advocate
                                    Mr.   Sanjay Kr. Baid, Advocate

     For the Defendant            : Mr. Malay Kr. Ghosh, Sr. Advocate
                                    Mr. Mohit Gupta, Advocate
                                    Mr. Anand Prasad Agarwalla, Advocate

     Hearing concluded on         : February 12, 2021

     Judgment on                  : February 22, 2021


     DEBANGSU BASAK, J. :-

1.

In a suit for partition, the plaintiff has applied for a preliminary

decree in respect of the properties described in Schedules A and B of the

plaint.

2. Learned Advocate appearing for the plaintiff has submitted that,

the shares amongst the parties are admitted. The defendant No.1 series

have raised a specious plea with regard to the schedules of the

properties involved in the suit for partition. The Court has the

jurisdiction to pass a preliminary decree without identifying the

properties involved in the suit. In support of such contentions, he has

relied upon 2012 Volume 3 Supreme Court Cases 548 (Bimal Kumar

& Anr. v. Shakuntala Debi & Ors.), All India Reporter 1998

Gujarat 27 (Heir of Barot Dansang Hirji & Ors. v. Barot Kanji Hirji

& Ors.), All India Reporter 1923 Madras 147 (T. Ramaswami Aiyar

v. T. Subramania Aiyar), 2014 Volume 2 High Court Cases (Cal) 230

(Smt. Gita Dey & Ors. v. Smt. Nalinibala Dey & Ors.), 2015 Volume

1 Calcutta High Court Notes 688 (Smt. Gita Dey & Ors. v. Smt.

Nalinibala Dey & Ors.) and All India Reporter 1962 Supreme Court

1493 (R.B.S.S. Munnalal & Ors. v. S.S. Rajkumar & Ors.).

3. Learned Advocate appearing for the plaintiff has relied upon Order

XX Rule 18 and Order XXVI Rules 13 and 14 of the Code of Civil

Procedure, 1908 in respect of his contentions that, the Court can pass a

number of preliminary decrees as the situation demands and that there

is no impediment in the Court passing a preliminary decree declaring

the shares of the parties by appointing a Commissioner of Partition to

identify the properties and thereafter directing the partition of such

identified properties. He has submitted that, the Court need not be

detained till all the properties involved in the suit are identified for the

purpose of declaring the shares of the parties in the suit properties. The

exercise of identification of the properties can be done subsequent to the

declaration of the shares of the parties in the suit.

4. Learned Senior Advocate appearing for the defendant No. 1 series

has submitted that, without the suit properties being identified, a

preliminary decree declaring the shares of the parties to the suit cannot

be passed. In support of his contentions, he has relied upon 3 Indian

Cases 247 (Satya Kumar Banerjee v. Satya Kirpal Banerjee &

Anr.), (1910-11) 15 CWN 375 (Upendra Nath Banerjee & Anr. v.

Umesh Chandra Banerjee) and 2009 Volume 9 Supreme Court Cases

689 (Shub Karan Bubna v. Sita Saran Bubna & Ors.).

5. Should a preliminary decree be passed in a suit for partition prior to

the Court identifying the properties involved in the suit finally, is the

issue that has fallen for consideration of the present case.

6. In the suit the plaintiff has sought partition of the estate and

assets left behind by the deceased parents of the parties namely Late

Ratan Lal Bhartia and Late Sita Devi Bhartia. The plaintiff has tabulated

the estate of the two deceased in Schedules A and B to the plaint. The

plaintiff has claimed that, he has reasons to believe that there are other

assets belonging to the deceased parents. The plaintiff has claimed

discovery and enquiry into the assets and properties of his deceased

parents and partition thereof.

7. In the plaint, the plaintiff has claimed 1/6th share. The plaintiff has

stated that, the original defendant No. 1 is entitled to 1/6th share,

defendant Nos. 2 to 4 are entitled to 1/6th share each and the defendant

Nos. 5 and 6 1/12th share each. The contesting defendants have not

disputed the shares amongst the parties. The contesting defendants

have however claimed that the suit schedule properties are not available

to partition and in any event, the suit schedule properties not being

identified as belonging to the estate, a preliminary decree cannot be

passed.

8. Satya Kumar Banerjee (supra) has considered a preliminary decree

passed in a suit for partition. It has considered the issue as to whether the

properties to be partitioned ought to have been determined by the court

before the preliminary decree was made. It has considered section 396 of

the Civil Procedure Code of 1882 and Order 26 Rules 13 and 14 of the

Code of Civil Procedure, 1908. It has held that, before the preliminary

decree is made, the court should determine whether the properties alleged

to be joint properties and belonging to the estate are really properties of

that description. Such finding had been returned in view of the provisions

of the old Civil Procedure Code, 1882. In the facts of that case, the suit had

been filed on April 15, 1907 prior to the Code of Civil Procedure, 1908

coming into effect.

9. In Upendra Nath Banerjee (supra) the Division Bench has

considered an appeal of the plaintiffs of that suit, against the preliminary

decree in a suit for partition of joint family properties. In the facts of that

case, the defendants did not dispute the contentions of the appellants that,

the District Judge ought not to have delegated to the Commissioner of

partition, the determination of the question as to whether certain disputed

properties are joint properties. It has noted Satya Kumar Banerjee

(supra). It has held that, all questions involving the title of the parties and

their rights to any relief within the issues, is judicial in character, and

must be determined by the court. Such determination has to be made

ordinarily by the court and incorporated in the interlocutory decree before

any partition is made or directed.

10. Shub Karan Bubna (supra) has considered a suit for partition. It has

held as follows: -

"5. "Partition" is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty.

6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. "Separation of share" is a species of "partition". When all co-

owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and

bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.

7. In a suit for partition or separation of a share, the prayer is not only for declaration of the plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues:

(i) whether the person seeking division has a share or interest in the suit property/properties;

(ii) whether he is entitled to the relief of division and separate possession; and

(iii) how and in what manner, the property/properties should be divided by metes and bounds?

In a suit for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as "decree" under Order 20 Rule 18(1) and termed as "preliminary decree" under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/combinations/alternatives of division is referred to

the Collector under Rule 18(1) and is the subject-matter of the final decree under Rule 18(2)."

11. Bimal Kumar and another (supra) has considered the distinction

between a preliminary decree and a final decree. It has held as follows: -

"25. In the said case, after referring to Civil Procedure Code by Mulla, this Court in Renu Devi case [(2003) 10 SCC 200 : AIR 2003 SC 1608] , while drawing a distinction between the preliminary and the final decree, has stated that a preliminary decree declares the rights or shares of the 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 the 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. Thus, fundamentally, the distinction between preliminary and final decree is that: 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."

12. R.B.S.S. Munnalal & Ors. (supra) in the facts of that case, has

considered the issue as to whether the trial court was in error in delegating

to a Commissioner judicial functions, such as, ascertainment of property

to be divided and effecting partition. It has held that, the trial court

appointed a commissioner to propose a partition of joint family property,

and for that purpose the court authorised him to ascertain the property,

the debts which the family owed and also the individual liability of the

parties for the debts. For deciding those questions the Commissioner was

empowered to record statements of the parties, frame issues and to record

evidence as might be necessary. The Commissioner was also directed to

submit his proposals relating to the rights of the parties to be maintained

out of the joint family property. It has held that, by doing so, the trial court

did not abdicate its functions to the Commissioner. The trial court had

merely asked the Commissioner to make proposal for partition on which

the parties would be heard, and the court would adjudicate upon such

proposals in the light of the decree and the contentions of the parties. The

proposals of the Commissioner cannot from their very nature be binding

upon the parties.

13. In T. Ramaswami Aiyar (supra) the Madras High Court has noted

the distinction between section 396 of the old Civil Procedure Code and the

provisions of the Code of Civil Procedure, 1908 namely Order 26 Rules 13

and 14 and Order 20 Rule 18. In the facts of that case, it has held that, the

trial court did not keep in mind such distinction in the progress of the suit

as the suit for partition was governed by the provisions of the old Civil

Procedure Code.

14. In Smt. Gita Dey (supra) the parties had challenged the return of the

Commissioner of partition on the ground that the same was not in terms of

the preliminary decree. The Court had found, in the facts of that case that

the preliminary decree did not permit the Commissioner of partition to

decide any issue and that, the Commissioner of partition did not decide

any issue raised by the parties before him. The Division Bench on appeal

had affirmed the decision of Smt. Gita Dey (supra).

15. In Heir of Barot Dansang Hirji (supra) on consideration of a suit for

partition, has held that, there can be one preliminary decree or a number

of preliminary decrees in a suit for partition and that the shares of the

parties are determined first at the stage of the preliminary decree. Actual

partition is affected as per the final decree.

16. In the facts of the present case, the shares between the parties,

should the properties involved in the suit are to be partitioned, has been

admitted by the parties. The contesting defendants have raised the issue

that, the properties which the plaintiff has sought partition of, cannot be

brought into the hotspotch of the suit for partition.

17. The plaintiff has filed the suit for partition of the movables belonging to

the deceased parents of the plaintiff. The plaintiff and the defendants in

the suit are heirs and legal representatives of the two deceased parents

whose estate have been sought to be partition, on intestacy. The defendant

No. 1 series have opposed the present application on various grounds.

Principally, such defendants have contended that, the movable assets

shown to be owned by Late Ratan Lal Bhartia and Late Sita Devi Bhartia in

the plaint are incorrect, inflated, fictitious and not available for partition.

Such defendants have relied upon the Wills of the two deceased as also the

applications for grant of probate in respect of such Wills. Such defendants

have contended that, although the probate applications may not be live,

such defendants are taking steps to have probate of the two Wills of the

two deceased granted.

18. In addition to the two Wills of the two deceased, the defendant No.1

series have referred to and relied upon various suits and other proceedings

which the parties to the suit had initiated as against each other. According

to the contesting defendants, the plaintiff has filed the present suit as a

counter blast to such proceedings.

19. The parties have not contended that, the two deceased had died

without leaving behind any assets. The list of assets of the two deceased

may or may not be inflated or mis-described by the plaintiff in the plaint.

The same by itself does not prevent the court from declaring the shares of

the respective parties to the assets of such deceased, on intestacy, given

the fact that, probate of the two wills of the two deceased have not been

granted as yet. The issue as to whether schedules A and B of the plaint

describing the movable assets of the two deceased are mis-described or

inflated is an issue of fact and has to be decided at the trial of the suit after

affording the parties an opportunity to lead evidence. The defendant No. 1

series have not contested the present application by contending that, by

virtue of the probate of the two Wills, the plaintiff cannot claim any right,

title and interest in respect of the movable assets of the two deceased. The

affidavit of assets of the two deceased in the two probate applications will

also demonstrate that, the two deceased had left behind assets belonging

to them. In absence of a probate being granted in respect of the estate of

the two deceased, such assets of the two deceased have to be partitioned in

a suit for partition as has been filed by the plaintiff. All the assets as

described in schedules A and B of the plaint may or may not be available

at the time of partition. Moreover, the parties have to establish the assets

that are available for partition. The parties have the opportunity to do so at

the trial, after the parties have been allowed an opportunity to lead

evidence on such an issue. Declaration of the shares of the parties, on

intestacy of the two deceased, in respect of the assets, need not await a

decision of the exact nature, scope and extent of their assets.

20. In a suit for partition, the court need not decide as to whether all the

properties involved in the suit for partition can be partitioned by metes and

bounds or not amongst the parties to the suit, prior to a preliminary decree

being passed declaring the shares of the parties to the suit. The declaration

of shares of the parties to the suit by a preliminary decree is not dependent

upon the court finding as to whether the suit properties are capable of

partition or not. The issue as to whether the suit properties are capable of

being partitioned or whether they can be brought within the hotspotch of

the suit for partition, are issues of facts and can be decided subsequent to

the declaration of the shares to the parties. The provisions of the Code of

Civil Procedure, 1908 have empowered the court to pass a preliminary

decree or such number of preliminary decrees as the court made deem fit

and proper in the facts and circumstances of the case, in a suit of

partition.

21. Order 20 of the Code of Civil Procedure, 1908 has dealt with judgement

and decree of a civil court. Rule 18 of Order 20 of the Code of Civil

Procedure, 1908 has, inter alia provided that, the court may, if the

partition or separation of the assets involved in a suit for partition, cannot

be conveniently made without further enquiry, pass a preliminary decree

declaring the rights of the several parties interested in the property and

give such further directions as may be required. Order 26 Rule 13 of the

Code of Civil Procedure, 1908 has empowered the court to appoint a

Commissioner in a suit for partition, to make partition or separation

according to the rights as declared in a preliminary decree. Rule 14 of

Order 26 of the Code of Civil Procedure, 1908 has provided for the

procedure of the Commissioner of partition when such Commissioner of

partition has been asked to divide the property, by a preliminary decree.

The power of the court to pass a preliminary decree or such number of

preliminary decrees as the facts and circumstances of an individual case

warrants, cannot be doubted.

22. In view of the discussions above, the contention of the defendants

that a preliminary decree should not be passed in the suit, without first

deciding as to whether, the suit properties are available for partition or not,

cannot be sustained. The issue as has been raised is answered in the

affirmative and in favour of the plaintiff. In the facts of the present case,

since the shares between the parties are admitted, it would be appropriate

to pass a preliminary decree declaring the shares of the parties to the suit.

23. There will be a preliminary decree declaring that, the plaintiff along

with the defendant No.1 series, and 2 to 4 have 1/6th share each. The

defendant Nos. 5 and 6 have 1/12th share each in the suit properties. The

issue as to whether the suit properties as described in schedule A and B of

the plaint can be brought within the scope and ambit of the suit for

partition is left open at this stage.

24. IA GA No. 16 of 2018 in CS No. 365A of 1995 is disposed of

accordingly without any order as to costs.

[DEBANGSU BASAK, J.]