Mariamma Prince vs Mathew K.George
2021 Latest Caselaw 3462 Ker

IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:

THE HONOURABLE SMT. JUSTICE P.V.ASHA
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.

Monday, the 1* day of February 2621/12 Magha, 1942

IA.1/26019 IN RFA_No,.364/2069

OS No.492/2607 of the II ADDITIONAL SUB COURT, ERNAKULAM
PETIFIONERS/RESPONDENTS

1. MARIAMMA PRINCE , AGED 50 YEARS, W/0.LATE PRINCE MATHEW, PUNNAPUZHA
HOUSE, SOUTH PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM
DISTRICT.

 

RENU PRINCE ,AGED 29 YEARS, 0/0. LATE PRINCE MATHEW, PUNNAPUZHA HOUSE,
SOUTH PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK,, ERNAKULAM DISTRICT.

Nr

3. RIA ROSE PRINCE, AGED 27 YEARS,
D/O. LATE PRINCE MATHEW, PUNNAPUZHA HOUSE, SOUTH, PARUR, MANAKUNNAM
VILLAGE, KANAYANNUR TALUK,, ERNAKULAM DISTRICT.

4, RINKU PRINCE, AGED 25 YEARS, D/O.LATE PRINCE MATHEW, PUNNAPUZHA HOUSE,
SOUTH PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

5. RICHIE PRINCE, AGED 23 YEARS, D/O.LATE PRINCE MATHEW, PUNNAPUZHA HOUSE,
SOUTH. PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

6. SALLY JOSE, AGED 65 YEARS, W/O. LATE JOSE JAMES, PUNNAPUZHA HOUSE,
SOUTH PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

7. GEORGE K.GEORGE, $/0. LATE K.J.GEORGE, KARTHIKAPPALLILL, It-A, LINK

HEIGHTS, PANAMPILLY NAGAR, KOCHI -682 635.

RESPONDENT/APPELLANT

MATHEW K.GEORGE, S/O. LATE K.J.GEORGE, KARTHIKAPPALLILL, IRUMPANAM, ,

TRIPUNITHURA, ERNAKULAM DISTRICT.

Application praying that in the circumstances stated in the affidavit
filed therewith the High Court be pleased to engross the decree in the stamp
paper or direct the court below to engross the same in the stamp paper in the
larger interest of justice.

This application coming on for orders upon perusing the application and
the affidavit filed in support thereof and this court's Judgdment dated
8.7.20144 and upon hearing the arguments of M/S.NAGARAJ NARAYANAN, RAJAN
VELLOTH,SATJO HASSAN, A.S.SABU, BENOJ C AUGUSTIN, PRATHAP PILLAI, advocate
for the Petitioners 1 to 6/Respondents tyé RFA, M/S.MATHEW B. _KURIAN,
V.M.KURIAN, K.T.THOMAS, Advocates for the petitioner [email protected] oad of
M/S.T.B.THANKAPPAN, T.T.HARIKUMAR, V.P.RAMESAN, Advocates for
respondent/Petitioner in RFA, the court passed the following:
 

RFA 304-2009 I

"cf. R"

P.V.ASHA & SHIRCY V, JJ.

1.A.No.1 of 2019
in RFA No.304 of 2009

Dated this the day of 1* day of February, 2021.

 

ORDER

Shircy V, J

The short question which arises for consideration in this petition, is whether a preliminary decree can be executed without a final decree in a partition suit.

2. The brief facts of the case for determining the question which arise for consideration in this petition in nutshell are as under :-

The respondent Nos.1 to 6/plaintiffs have filed a suit for Partition of the suit property against the appellant/the first defendant and the second defendant before the Sub Court, Ernakulam. Partition was sought for a property anda building situated therein. After contest the suit was decreed and a preliminary decree for partition was passed directing to divide the plaint schedule property

and the building into 18 equal shares and the plaintiffs were declared

RFA 304-2009 2

as entitled to 16 shares jointly. Challenging the said judgment and decree RFA No.304 of 2009 was filed by the 1% defendant. In the appeal the matter was referred for mediation and after several rounds of mediation talk, the parties have settled their dispute. Thus the appeal was disposed of accepting the report of the mediator and a judgment and decree was passed in terms of the settlement of agreement. Thereafter, a final decree application was filed by the plaintiffs as I.A.No.2891/2009, before the court below, but it was closed on 31.3.2015 by the learned Sub Judge observing that specific plots were allotted in the preliminary decree and therefore, there was no need to pass a final decree.

3. Feeling aggrieved and dissatisfied with the said order a review petition was filed by the plaintiffs. But the said application was also dismissed by the court below directing the petitioners to approach this court to engross the decree in the stamp paper or for permission to engross decree in a stamp paper before that court. Pursuant to the said order of the learned Sub Judge, _ this application has been filed by the petitioners to engross the decree in stamp paper.

4. Heard the learned counsel for the plaintiffs and the learned --

RFA 304-2009 3

counsel for the defendants.

©. It is significant to note that partition of a property can be effected in several ways, i.e; by a decree of Court by dividing the property by metes and bounds, by a deed of partition, by a deed of release of right by a member relinquishing his/her right and also by an agreement either oral or written by the members. But it is pertinent to note that in a suit for partition what is determined in a preliminary decree is only the declaration of the rights of the parties and their shares. Therefore, the substantive legal rights alone are determined and final determination is yet to be finalized in further proceedings. Of-course a Preliminary Decree is not defined in definite terms in the Code of Civil Procedure (for short CPC) . But a decree is defined under Section 2(2) and we can find out what is a preliminary decree from Section 2(2) which reads as follows:

"2(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-

a) any adjudication from which an appeal lies as an appeal from an order, or .

b) any order of dismissal for default."

RFA 304-2009 4

Explanation -- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly

preliminary and partly final.

6. Explanation to Section 2(2) of CPC clearly indicate that a preliminary decree does not dispose of the suit completely though it determines substantive rights of the parties but further proceedings have to be taken before the suit can be completely disposed of. Therefore, an adjudication is complete only in a final decree as it dispose of the suit. The Court in a partition suit is only declaring the shares of the parties or conclusively decide the shares and in the limited sense, a preliminary decree is final, so far as the rights of the Parties are concerned and nothing more. Therefore, the suit has to be considered as pending until division takes place by passing of a final decree. In the final decree the property has to be divided by metes and bounds and finality to the lis will be attained in the final decree. That means the preliminary decree does not dispose of the suit completely and it is only to be considered as the prior stage of the suit . It is also important to note that in a partition suit more than one preliminary decree can be passed.

7. It is also important to refer to Section 97 of the Code of

RFA 304-2009 3

Civil Procedure in this context. Section 97 of CPC says that if a party is aggrieved by a preliminary decree but does not appeal from such decree, he/she shall be precluded from disputing its correctness in an appeal preferred from the final decree. Therefore, in a preliminary decree for partition, the court adjudicate upon the rights of the parties but does not entirely dispose of the suit though concludes certain controversies whereas in a final decree all the matters in dispute between the parties will be decided without leaving any issue to be decided further. That makes it clear that, the decree in a partition suit cannot be executed without a final decree. So in short, when there is no final decree, there is no executable decree and a decree becomes executable only when the final decree is passed. After the final decree the preliminary decree merges with the final! decree.

8. It is equally important to note certain provisions in Order XX of the Code of Civil Procedure. Rule 18 of Order XX of the Code of Civil Procedure deals with decrees in suits for partition or separate possession of a share. It is profitable to reiterate the said provision

which reads as follows:

RFA 304-2009 6

18. Decree in suit for partition of property or separate possession of a share therein: - Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, -

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such deciaration and with the provisions of Section 54;

(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required.

9. Section 54 of the Code of Civil Procedure is also relevant for the

present discussion and it is extracted for easy reference:

54. Partition of estate or separation of share - Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.

RFA 304-2009 7

10. Rule 13 and 14 of Order XXVI of the Court deals with how the commissioner appointed by the court in a final decree proceedings has to make partition of the properties after a preliminary decree for partition. For sake of convenience the relevant provisions are extracted below :

13. Commission to make partition of immovable property- Where a preliminary decree for partition has been passed, the court may, in any case not provided for by Section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

14. Procedure of Commissioner - (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shaij allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.

(2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shail pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.

RFA 304-2009 8

11. All the above referred provisions of the Code would clearly reveal that only on adjudication of the final decree the litigant gets relief in the suit. But of-course after the preliminary decree if the court could make division without the assistance of the commissioner, can pass a final decree. When division of shares is required with the assistance of a commissioner, a physical examination of the property by the commissioner is a must to effect division by metes and bounds. So on receipt of the report of the Commissioner effecting division of the shares as contemplated in Rule 13 and 14 of Order XXVI of the Code and hearing objections thereto, the court can confirm or vary the report and then pass a final decree in accordance

with the same as confirmed or varied.

12. Now we proceed to notice certain rules of Civil Rules of Practice in Kerala (for short CRP) relevant for determination of the issue as arisen in the present case. Rule 182 of CRP deals with the form of a decree. Rule 235 deals with particulars to be contained in a final decree in addition to the particulars stated in Rule 182. How the final decree is to be prepared is provided in Rule 187 of CRP.

Rule 187 reads as follows:

RFA 304-2009 9

187. Final decree in partition suits: - Final decree in partition suits shall be prepared and stamp duty levied in accordance with the following directions:

1) The value of the shares shall be the value as assessed by the Commissioner and accepted by the Court.

2) The stamp duty leviable shall be according to the Stamp Act in force at the time of the passing of the final decree.

3) The Court shall insist on the Commissioner filing a schedule showing the valuation of the shares for the purpose of stamp duty.

13. The principles that should be followed in a partition suit has been laid down by the Apex Court in Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna and others {(2009) 9 SCC 689]

Paragraphs 18.2,18.3,25,26 which are relevant are quoted below:

"18.2. In regard to immovable properties (other than agricultural lands paying land revenue), that is, buildings, plots, etc. or movable properties:

(i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds.

(ii) where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases,

RFA 304-2009 10

normally a Commissioner is appointed (usually an engineer, draughtsman, architect, or lawyer) to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds.

The function of making a partition or separation according to the rights declared by the preliminary decree (in regard to non-agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposais contained in the report are considered by the court: and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the Property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.

18.3. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is, division by metes and bounds takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of the Limitation Act). It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion."

25. Because of the artificial division of suits into preliminary decree

RFA 304-2009 11

proceedings, final decree proceedings and execution proceedings, many trial Judges tend to believe that adjudication of the right being the judicial function, they should concentrate on that part. Consequently, adequate importance is not given to the final decree proceedings and execution proceedings which are considered to be ministerial functions. The focus is on disposing of cases rather than ensuring that the litigant gets the relief. But the focus should not only be on early disposal of cases, but also on early and easy securement of relief for which the party approaches the court. Even among lawyers, importance is given only to securing of a decree, not securing of relief. Many lawyers handle suits only till preliminary decree is made, then hand it over to their juniors to conduct the fina! decree proceedings and then give it to their clerks for conducting the execution proceedings.

26. Many a time, a party exhausts his finances and energy by the time he secures the preliminary decree and has neither the capacity nor the energy to pursue the matter to get the final relief. As a consequence, we have found cases where a suit is decreed or a preliminary decree is granted within a year or two, the final decree proceeding and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system. Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits.

14. Now coming back to the facts of the present case, it is significant to note that final decree has not been passed by the court though in the appeal against the preliminary decree, settlement was

arrived between the parties. The records would reveal that the first

RFA 304-2009 12

appeal was disposed of by this Court accepting the settlement arrived between the parties in the appeal and the memorandum of agreement is made as a part of the judgment and decree. So on the basis of the Judgment passed on settlement, the learned Sub Judge has to comply with the formalities and act as per the provisions of the Code and Rules so as to effect a division of the property. A commissioner has to be appointed and entrusted to make allotment of shares of the property to the respective parties as per the preliminary decree and the Commissioner has to file a report with a schedule showing the valuation of the shares for the purpose of stamp duty and on receipt of the report, the court has to draw the final decree in stamp paper, so as to have the dispute between the parties to the suit a logical conclusion.

Therefore, the order of the learned Sub Judge dated 31.3.2015 is set aside. The trial court is directed to pass a final decree on the basis of the settlement arrived between the parties in RFA No.304/2009 after appointing a Commissioner as per the procedure to have the physical division of the shares. When the commissioner submits his report as to the manner of division, a final decree has to

be passed by the trial Court in accordance with the procedure after

RFA 304-2009 13

hearing both parties and then the final decree has to be engrossed in stamp paper as contemplated in Rule 187 of the Civil Rules of Practice as the value of the shares shail be the value as assessed by the Commissioner and, accepted by the court. Therefore, this I.A is disposed of directing the court below to take up and consider 1.A No.2891/2009 filed for passing of the final decree in terms of the preliminary decree dated 8.7.2014 in RFA 304/2009. The parties

shall bear their respective costs of this proceedings.

SD/-

P.V.ASHA (JUDGE)

TRUE COPY SD/-

SHIRCY V _ GUDGE)

Assistast a

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