Kerala High Court

Brenda Barbara Francis, Rep. By ... vs Adrian Miranda on 1 March, 2023

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE P.SOMARAJAN
                                    &
                  THE HONOURABLE MRS. JUSTICE M.R.ANITHA
         Wednesday, the 1st day of March 2023 / 10th Phalguna, 1944
                    IA.NO.1/2023 IN RFA NO. 353 OF 2016

          OS 34/1999 OF PRINCIPAL SUB COURT , THIRUVANANTHAPURAM

PETITIONERS/APPELLANTS:

  1. BRENDA BARBARA FRANCIS,(DEAD) NOW REP. BY MICHEAL N.S.FRANCIS, R/O
     100 CARNWITH DRIVE, WEST BROOKLIN, ONTARIO, LIM OA6, CANADA.
  2. MARISSA THAYURMAN, 15/1, EAST MARREDPALLY, SECUNDERABAD-500026.
  3. GERARD GABRIEL 15/1, EAST MARREDPALLY, SECUNDERABAD-500026.
  4. KAREN GABRIEL 15/1, EAST MARREDPALLY, SECUNDERABAD-500026.
  5. DORATHY MIRANDA, SAGAR PLAZA, C.H.C. OPP. MALWANI CHURCH, MALAD
     WEST-1, MUMBAI-400095.
  6. NIGEL MIRANDA 10, CARDINAL GRACIS BUILDING, 3RD FLOOR, COLABA CAUSE
     WAY, OPP. LEO POLE RESTAURANT, COLABA, MUMBAI-400 039.
  7. KIM MIRANDA, 11029, 82ND AVENU, DELTA, BC, B4C2B3, CANADA.
  8. ALTHEA AYESHA GOYAL, 11029, 82ND AVE, DELTA BC, B4C2B3, CANADA.

(ALL APPELLANT ARE REPRESENTED BY THEIR POWER OF ATTORNEY G.ANAND, 35
DEFENCE COLONY , CHENNAI -600 032)

RESPONDENTS/DEFENDANTS:

  1. ADRIAN MIRANDA "HALCYON" PAKKATTUVILA, KUNNUKUZHI,
     THIRUVANANTHAPURAM-695 035.
  2. VINITHA PENKAR(DEAD) NOW REP BY SONS(1)ADARSH JOSHUA PENKAR(2) ARPAN
     JUDE PENKAR & (3) APOORVA BASIL PENKAR, ALL R/O NO 357 SILVER OAKS
     BUNGLOW (NEAR GOVERNMENT MINT) CHINNA CHERLAPPAY, SECUNDERABAD - 500
     051.
  3. GERALDINE JACOB 8, BEAVERTON ROAD NORTH, RICHMOOD HILL, ONTARIO,
     CANADA. REP. BY POA ALBERT MANUEL THOMAS, "DEOGRATIAS", F3A,
     POTHUJANAM ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.
  4. RAMAKRISHNAPILLAI, KAKKANAD VEEDU, ULLOOR, THIRUVANANTHAPURAM SCRIBE
     OF MALAYALAM WILL OR TESTATOR/ MOTHER (DEAD)HENCE NAME BE DELETED
  5. ADARSH JOSHUA PENKAR, R/O NO 357 SILVER OAKS BUNGLOW (NEAR
     GOVERNMENT MINT) CHINNA CHERLAPPAY, SECUNDERABAD - 500 051.
  6. ARPAN JUDE PENKAR,R/O NO 357 SILVER OAKS BUNGLOW (NEAR GOVERNMENT
     MINT) CHINNA CHERLAPPAY, SECUNDERABAD - 500 051.
  7. APOORVA BASIL PENKAR,R/O NO 357 SILVER OAKS BUNGLOW (NEAR GOVERNMENT
     MINT) CHINNA CHERLAPPAY, SECUNDERABAD - 500 051.

     Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to pass appropriate
orders to draw the decree on the engrossed stamp paper by the Registry of
this Honourable Court.
      This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof,and this court's judgment dated
12.04.2017 and this court's order dated 30.01.2023 in I.A.No.3/2018 and
upon hearing the arguments of SRI.D.SREEKUMAR, Advocate for the
petitioners and of SRI.JOSH RAJAN (NALANCHIRA), SRI.SABU S.KALLARAMOOLA
Advocates for R1 to R3, the court passed the following:
                                                                    CR

                P.SOMARAJAN & M.R.ANITHA, JJ.
                ------------------------------
            I.A.No.1/2023 in R.F.A.No.353 of 2016
                ------------------------------
            Dated this the 01st day of March, 2023

                              O R D E R

Somarajan, J.

The question came up for consideration before us by

way of I.A.No.1/2023 is with respect to the

permissibility of this Court (the first appellate court)

to engross a final decree for partition on required stamp

paper or whether this court can exercise jurisdiction for

that purpose.

2. The procedure to be adopted for engrossing a

decree on stamp paper is dealt under the provisions of

Civil Rules of Practice, Kerala. The form of decree that

can be drawn is made mentioned under Rule 182 in Chapter

V of the said Rules. But in the case of final decree for

partition, in addition to the requirement under Rule 182,

the mandate under Section 235(1) and (2) has to be

complied with in so far as it is applicable either to

movable or immovable properties. The plan prepared at the

final decree stage and accepted by the court shall be

appended to the final decree, besides the schedule of

properties. The question of engrossing the final decree

would arise only after attaining finality and

conclusiveness to a decree drawn either by the trial

court or by the first appellate court or by the second

appellate court as the case may be. The expression

"decree" is defined under Section 2(2) of the Code of

Civil Procedure as follows:-

"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. 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."

3. Going by the first limb of the said definition,

a decree or a final decree would stand for the "formal

expression of an adjudication which conclusively

determines the right of parties in any of the controversy

in the suit". Necessarily, a final decree in a partition

suit should be understood as the formal expression of

adjudication by the court determining the rights of

parties and disposing the suit completely by such

adjudication. The definition of 'judgment' under Section

2(9) of the Code of Civil Procedure means the statement

given by the Judge on the grounds of a decree. A conjoint

reading of these two definitions would show that the

decree in fact stands for the operative portion of the

judgment, which determines the right of parties. There

may not be any change in the legal position regarding

what would constitute a decree as defined under Section

2(2) of C.P.C. either at the trial stage or at the first

appellate stage or even at the second appellate stage. By

virtue of the principle of merger, the decree passed by

the trial court will stand merged in the decree passed by

the first appellate court or the second appellate court

as the case may be and the decree can be executed by the

execution court and not by the first appellate court or

the second appellate court by virtue of provisions

contained under Order XXI C.P.C irrespective of whether

it was passed by the first appellate court or the second

appellate court. The very same principle is applicable to

a decree of partition of immovable property when it

requires a documentation showing title, interest or the

right thereof as mandated under the provisions of the

Registration Act. It is for that purpose, the final

decree for partition has to be engrossed on required

stamp paper, as if it were a partition effected by the

parties inter se. This being the legal position, once

the decree has attained finality, it will go back to the

trial court so as to comply with the requirement for

engrossing the decree on stamp paper so as to make it a

document of title, interest or right or severance thereof

as the case may be. The subsequent provision, Rule 237 of

Civil Rules of Practice says that the decree should be

engrossed on non-judicial stamp paper of requisite value

with a supplement that it shall be retained by the court

and shall form part of the record. The expression 'by the

court' made mentioned therein stands for the trial court.

Sub-Rule (2) and (3) says that a copy of final decree in

a partition suit shall be sent to the Sub-Registrar

within whose jurisdiction, the immovable property situate

and if it is within the jurisdiction of more than one,

shall send copies to all such Sub-Registrar.

4. Rule 187 deals with the manner in which the

value of stamp paper can be assessed. It says that the

stamp duty levied must be in accordance with the

directions under that provision i.e. direction Nos. 1 to

3, which states as follows:

"187. Final decree in partition suits - Final decrees 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."

5. This would make the legal position clear that

there are lot of differences in 'drawing' a decree and

'engrossing' a decree. The appellate jurisdiction either

by way of first appeal or second appeal will stand

terminated on disposal of the appeal by drawing a decree.