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2014 DIGILAW 535 (HP)

Sat Pal v. Mam Chand

2014-05-06

RAJIV SHARMA

body2014
Judgment : Justice Rajiv Sharma, Judge (oral). This petition is instituted against the order dated 19.1.2013 rendered by the District Judge, Sirmaur District at Nahan in Civil Misc. Appeal No.18-CMA/14 of 2011. 2. Pertinent facts necessary for the adjudication of this petition are that petitioners-plaintiffs (hereinafter referred to as the “plaintiffs” for convenience sake) have instituted a Civil Suit No.18/1 of 1993 in the court of Sub Judge 1st Class, Nahan for partition of immovable property detailed in the plaint. Preliminary decree was passed on 9.11.1999. Plaintiffs filed an application under order 26 rule 13 read with section 151 of the Code of Civil Procedure for appointment of Local Commissioner in the court of Senior Sub Judge, Nahan. Senior Sub Judge, Nahan vide order dated 26.7.2001 appointed Sh. D.R. Verma, Tehsildar, Nahan and Sh. R.S. Chandel as Local Commissioners for suggesting mode of partition. Report was submitted by the Local Commissioners. No objections were filed against the report of the Local Commissioners. Senior Sub Judge accepted the report vide order dated 13.9.2004 and passed final decree of partition. The plaintiffs filed an appeal before the Additional District Judge, Nahan against the order dated 13.9.2004. Learned Additional District Judge allowed the appeal vide judgment dated 15.9.2008 and remanded the matter back on the ground that the Local Commissioners have not carried out the partition in accordance with preliminary decree passed by the trial court. 3. Thereafter, plaintiffs preferred an application under order 20 rule 18 of the Code of Civil Procedure for correction of the shares by preparing another preliminary decree. The application was contested by the respondents-defendants (hereinafter referred to as the “defendants” for convenience sake). According to the defendants, since the plaintiffs have not preferred any appeal against the preliminary decree, they were precluded from disputing the correctness of the shares. According to them, the parties were required to be governed by the preliminary decree dated 9.11.1999. Plaintiffs filed rejoinder to the reply filed by the defendants. Civil Judge (Senior Division) dismissed the application preferred by the plaintiffs under order 20 rule 18 of the Code of Civil Procedure on 28.6.2011. The Collector, Sirmaur District, at Nahan was directed to suggest the mode of partition through its officials strictly in accordance with preliminary decree dated 9.11.1999 in the presence of parties and counsel. Civil Judge (Senior Division) dismissed the application preferred by the plaintiffs under order 20 rule 18 of the Code of Civil Procedure on 28.6.2011. The Collector, Sirmaur District, at Nahan was directed to suggest the mode of partition through its officials strictly in accordance with preliminary decree dated 9.11.1999 in the presence of parties and counsel. The reference was ordered to be made to the Collector and the report was called for 27.7.2011. The plaintiffs filed an appeal before the District Judge, Sirmaur District at Nahan. He dismissed the same on 19.1.2013. Hence, the present petition. 4. What emerges from the facts enumerated hereinabove is that preliminary decree was passed on 9.11.1999. It was not assailed. The final decree was passed on 13.9.2004. The plaintiffs preferred an appeal before the Additional District Judge, Sirmaur District at Nahan. He remanded the matter back to the trial court on 15.9.2008 for passing final decree in accordance with the preliminary decree dated 9.11.1999 after considering the objections filed by the defendants. 5. Mr. Bimal Gupta has vehemently argued that the shares as per preliminary decree have been wrongly allotted on the basis of compromise. According to him, the preliminary decree requires rectification of errors of area so that the correct mode of partition could be prepared. 6. Mr. Karan Singh Kanwar has argued that the preliminary decree was passed after complete trial on merits. He has also argued that no further development has taken place necessitating framing of fresh preliminary decree. 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 8. The preliminary decree dated 9.11.1999 was passed by the trial court on merits after complete trial. It was not based on the compromise. The Local Commissioners were appointed by the trial court. The Local Commissioners’ report was accepted on the basis of which final decree was passed on 13.9.2004. Learned Additional District Judge, as noticed above, allowed the appeal against the final decree dated 13.9.2004 by holding that the Local Commissioner had not carried out the partition in accordance with the preliminary decree passed by the trial court and remitted back the matter to the trial court for passing final decree strictly in accordance with the preliminary decree dated 9.11.1999 after deciding the objections, which were earlier filed by the contesting defendants. 9. 9. In view of the facts enumerated hereinabove, the application preferred by the plaintiff under order 20 rule 18 of the Code of Civil Procedure for correction of the shares by preparing another preliminary decree was not maintainable. The plaintiffs has raised objection against the report of the Local Commissioners. These objections did not survive as the Local Commissioners’ report has already been set aside. The preliminary decree drawn on 9.11.1999 has become final between the parties and the plaintiffs are precluded to raise the issue of allotment of shares again. There is no subsequent development necessitating fresh preliminary decree. Rather, the application filed under order 20 rule 18 of the Code of Civil Procedure is to over reach the order passed by the learned Additional Sessions Judge on 15.9.2008. The entire exercise has been undertaken by the plaintiffs to delay the preparation of final decree. 10. Their Lordships of the Hon’ble Supreme Court in Phoolchand and another Vs. Gopal Lal, AIR 1967 SC 1470 have held that so far as partition suits are concerned, if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. However, this can only be done so long as the final decree has not been passed. Their Lordships have held as under: “7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights ; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible - and obviously this is so because the High Courts have differed on the question - we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the Court which passed the preliminary decree, for it must not be forgotten that the suit is not over to the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances of this case it was open to the Court to draw np a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial Court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can he amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant.” 11. In the instant case, no ground has been made for variation in shares as determined by way of preliminary decree. 12. Their Lordships of the Hon’ble Supreme Court in Muthangi Ayyana vs. Muthangi Jaggarao and others, AIR 1977 SC 292 have held that final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree. Their Lordships have held as under: “5. This appeal, coming up before us from the final decree, raises the question whether the preliminary decree, confines, as the learned counsel for the appellant defendant No.4 submits, according to the claims made by and against individual parties mentioned in the preliminary decree. Their Lordships have held as under: “5. This appeal, coming up before us from the final decree, raises the question whether the preliminary decree, confines, as the learned counsel for the appellant defendant No.4 submits, according to the claims made by and against individual parties mentioned in the preliminary decree. He urges that it cannot be extended to all parties, including the defendant No.4, if the terms of the preliminary decree are binding. The contention is based on the well recognized proposition that a final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree.” 13. Their Lordships of the Hon’ble Supreme Court in Prema vs Nanje Gowda and others, (2011) 6 SCC 462 have held that even if preliminary decree is confirmed in appeal and same does not become final till passing of final decree and during interregnum if rights and shares of parties are altered, for e.g. by virtue of any statutory amendment, or otherwise, court must give effect to the same and modify preliminary decree accordingly. Their Lordships have held as under: “15. In the present case, the preliminary decree was passed on 11.8.1992. The first appeal was dismissed on 20.3.1998 and the second appeal was dismissed on 1.10.1999 as barred by limitation. By the preliminary decree, shares of the parties were determined but the actual partition/division had not taken place. Therefore, the proceedings of the suit instituted by respondent No.1 cannot be treated to have become final so far as the actual partition of the joint family properties is concerned and in view of the law laid down in Phoolchand v. Gopal Lal (supra) and S. Sai Reddy v. S. Narayana Reddy (supra), it was open to the appellant to claim enhancement of her share in the joint family properties because she had not married till the enforcement of the Karnataka Act No.23 of 1994. Section 6A of the Karnataka Act No.23 of 1994 is identical to Section 29A of the Andhra Pradesh Act. Therefore, there is no reason why ratio of the judgment in S. Sai Reddy v. S. Narayana Reddy (supra) should not be applied for deciding the appellant's claim for grant of share at par with male members of the joint family. Section 6A of the Karnataka Act No.23 of 1994 is identical to Section 29A of the Andhra Pradesh Act. Therefore, there is no reason why ratio of the judgment in S. Sai Reddy v. S. Narayana Reddy (supra) should not be applied for deciding the appellant's claim for grant of share at par with male members of the joint family. In our considered view, the trial Court and the learned Single Judge were clearly in error when they held that the appellant was not entitled to the benefit of the Karnataka Act No.23 of 1994 because she had not filed an application for enforcing the right accruing to her under Section 6A during the pendency of the first and the second appeals or that she had not challenged the preliminary decree by joining defendant Nos.1, 4 and 5 in filing the second appeal. 16. We may add that by virtue of the preliminary decree passed by the trial Court, which was confirmed by the lower appellate Court and 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. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court ceased with the final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order. 17. In this case, the Act was amended by the State-legislature and Sections 6A to 6C were inserted for achieving the goal of equality set out in the Preamble of the Constitution. In terms of Section 2 of the Karnataka Act No.23 of 1994, Section 6A came into force on 30.7.1994, i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. In terms of Section 2 of the Karnataka Act No.23 of 1994, Section 6A came into force on 30.7.1994, i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination practiced against the unmarried daughter had been removed by the legislative intervention and there is no reason why the Court should hesitate in giving effect to an amendment made by the State legislature in exercise of the power vested in it under Article 15(3) of the Constitution. 18. The issue which remains to be considered is whether the learned Single Judge of the High Court was justified in refusing to follow the law laid down in S. Sai Reddy v. S. Narayana Reddy (supra) on the ground that the same was based on the judgment of three-Judge Bench in Phoolchand v. Gopal Lal (supra) and a contrary view had been expressed by the larger Bench in Venkata Reddy v. Pethi Reddy (supra). 23. The Court then held that the preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but is final in so far as the matters dealt with by it are concerned. This is evident from the following observations made in the judgment: ".......................................A decision is said to be final when, so far as the court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree --the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree --the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree." (emphasis supplied) 29. In our view, neither of the aforesaid three judgments can be read as laying down a proposition of law that in a partition suit, preliminary decree cannot be varied in the final decree proceedings despite amendment of the law governing the parties by which the discrimination practiced against unmarried daughter was removed and the statute was brought in conformity with Articles 14 and 15 of the Constitution. We are further of the view that the ratio of Phoolchand v. Gopal Lal (supra) and S. Sai Reddy v. S. Narayana Reddy (supra) has direct bearing on this case and the trial Court and the High Court committed serious error by dismissing the application filed by the appellant for grant of equal share in the suit property in terms of Section 6A of the Karnataka Act No.23 of 1994.” 14. In the instant case, the preliminary decree was never assailed and it has been permitted to attain finality. 15. Their Lordships of the Hon’ble Supreme Court in Ganduri Koteshwaramma and another vs. Chakiri Yanadi and another, (2011) SCC 788 have held that modification of preliminary decree or more than one preliminary decree prior to passing of final decree is permissible having regard to changed or supervening circumstances. Their Lordships have held as under: “17. 15. Their Lordships of the Hon’ble Supreme Court in Ganduri Koteshwaramma and another vs. Chakiri Yanadi and another, (2011) SCC 788 have held that modification of preliminary decree or more than one preliminary decree prior to passing of final decree is permissible having regard to changed or supervening circumstances. Their Lordships have held as under: “17. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. We are fortified in our view by a 3- Judge Bench decision of this Court in the case of Phoolchand and Anr. Vs. Gopal Lal [ AIR 1967 SC 1470 ] wherein this Court stated as follows: "We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. . . . .. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; ........... there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. . . there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. . . for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. . . . .a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree.... ............ ." 20. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule 18 of C.P.C. In a suit for partition of immovable property, if such property is not assessed to the payment of revenue to the government, ordinarily passing of a preliminary decree declaring the share of the parties may be required. The court would thereafter proceed for preparation of final decree. In Phoolchand1, this Court has stated the legal position that C.P.C. creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings. 22. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings. 22. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree.” 16. Their Lordships of the Hon’ble Supreme Court in Bimal Kumar and another vs. Shakuntala Debi and others, (2012) 3 SCC 546 have explained the difference between preliminary decree and final decree as under: “25. In the said case, after referring to CPC by Mulla, this Court, 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. 32. 32. It is well settled in law that a preliminary decree declares the rights and liabilities, but in a given case, a decree may be both preliminary and final and that apart, a decree may be partly preliminary and partly final. It has been so held in Rachakonda Venkat Rao v. R. Satya Bai ( (2003) 7 SCC 452 ). It is worth noting that what is executable is a final decree and not a preliminary decree unless and until the final decree is a part of the preliminary decree. That apart, a final decree proceeding may be initiated at any point of time. It has been so enunciated in Hasham Abbas Sayyad v. Usman Abbas Sayyad and others, (2007) 2 SCC 355 .” 17. In the instant case there are no supervening circumstances except the bald version that the matter was compromised. 18. Accordingly, in view of the discussion and analysis made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.