PRELIMINARY DECREE OF PARTITION: LAW AND LIMITATION
A
suit for partition when filed generally contains prayer for preliminary decree
followed with final decree. The ascertaining of share in the property between
the claimant/legal heirs are prima face decided while passing preliminary
decree. The final decree therefore may entail ministerial acts only as that may
relate to demarcation and for that purpose appointment of Local Commissioner
and if the property is not capable of divided by metes and bounds, then
the auction sale or private sale could be contemplated in the final decree. The
partition suit in itself is quite different in its nature and therefore, the
provisioning of preliminary decree is made for this purpose, unlike any
conventional suits.
The another dimension that emerges is
as regards whether the suit shall terminate upon passing of preliminary decree
and if it is not so, whether the proceedings thereafter shall be deemed to be a
continuous proceedings, or still further, whether any application for seeking
pronouncing of final decree shall be required, once preliminary decree is
pronounced.
Assuming that any application for
seeking pronouncing of final decree shall be required, then the next question
shall ipso facto arise what will be
the limitation period for any such application? In other words, if the
application after passing of preliminary decree shall be required for
pronouncing final decree, the trap of limitation shall follow. The question
therefore arise- whether final decree could be dropped on
the premise that it was barred by limitation? The endeavour is made herein to unravel the aspect fully
and completely.
Conventional wisdom shall suggest that
once the rights/shares of the plaintiff had been finally determined by a
preliminary decree, there should not be a limitation period for an application
for affecting the actual partition/division in accordance with the preliminary
decree, as it should be considered to be an application made in a pending suit.
Still, the issue of limitation is often raked
up in the context when a preliminary decree is passed in a partition suit. It
is contended that a right enures to the plaintiff to apply for a final decree
for division of the suit property by metes and bounds; that whenever an
application is made to enforce a right or seeking any relief, such application
is governed by the law of limitation; that an application for drawing up a
final decree would be governed by the residuary Article 137 of Limitation Act,
1963 (‘Act’ for short) which provides a period of limitation of three years;
that as such right to apply accrues on the date of the preliminary decree, any
application filed beyond three years from the date of preliminary decree would
be barred by limitation.
The
Supreme Court in a matter captioned as Shub Karan Bubna @ Shub Karan Prasad Bubna Vs Sita Saran
Bubna & Ors
in SLP No. 17932 OF 2009 has dealt with the issue in great length. The basic
parameter and concept of partition may require further elucidation, though.
PARTITION: Concept
‘Partition’ is a re-distribution 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 severally. 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. In a suit
for partition or separation of a share, the prayer is not only for declaration
of 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 is 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).
The
Rule 18 of Order 20 of the Code of Civil Procedure (‘Code’ for short) deals
with decrees in suits for partition or separate possession of a share therein
which is extracted below:
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 declaration 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.”
The
terms 'preliminary decree' and 'final decree' used in the said rule are defined
in Explanation to section 2(2) of the Code and reads thus :
“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.”
Section
54 of the Code dealing with partition of estate or separation of share,
relevant for purposes of Rule 18(1) reads thus:
“Where the
decree is for the partition of an undivided estate assessed to the payment of
revenue of 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 sub-ordinate 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.”
Rule
13 of Order 26 of the Code dealing with Commissions to make partition of
immovable property, relevant for purposes of Rule 18(2) reads thus :
“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.”
Once
a court passes a preliminary decree, it is the duty of the court to ensure that
the matter is referred to the Collector or a Commissioner for division unless
the parties themselves agree as to the manner of division. This duty in the
normal course has to be performed by the court itself as a continuation of the
preliminary decree. Sometimes, either on account of the pendency of an appeal
or other circumstances, the court passes the decree under Rule 18(1) or a
preliminary decree under Rule 18(2) and the matter goes into storage to be
revived only when an application is made by any of the parties, drawing its
attention to the pending issue and the need for referring the matter either to
the Collector or a Commissioner for actual division of the property.
The
following principles emerge in the above backdrop and relating to partition
suit.
(i)
If estate assessed to payment of
revenue to the government (agricultural land), the court is required to pass
only one decree declaring the rights of several parties interested in the suit
property
with
a direction to the Collector (or his subordinate) to effect actual partition or
separation in accordance with the declaration made by the court in regard to
the shares of various parties and deliver the respective portions to them, in
accordance with section 54 of Code.
It is necessary for two reasons:
(ia) Revenue
Authorities are more conversant with matters relating to
agricultural
lands and apart from that safeguarding the revenue interest of government;
(ib) Where the
Collector acts in terms of the decree, the matter does not come back to the
court at all. The court will not interfere with the partitions by the
Collector, except to the extent of any complaint of a third party affected
thereby.
So far as immovable properties (other
than agricultural lands paying land revenue) are concerned including moveable
assets following situation shall emerge:
(ia)
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.
(iia)
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, 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 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 proposals 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.
The preliminary decree could be passed by a trial
court suo motu or upon filing of
application under Order 12 Rule 6 of the Code of Civil Procedure id the
admission in the pleadings are conspicuous. In Delhi Jal Board vs. Surendra
P. Malik SCC OnLine Del 292 , it is
held that:
8. The provision confers almost sweeping powers on the Court to render a
speedy judgment in the suit to save the parties from going through the
rigmarole of a protracted trial. The only pre-requisite for this is that there
must be admissions of fact arising in the suit, be that in the pleadings or
otherwise or orally or in writing. Such admission of facts must be clear and
unequivocal, unconditional and unambiguous and may relate to the whole claim or
a part of it. These need not be made specifically or expressly and could be a
constructive admissions also. Whether or not such admission arose in the suit
would depend on the facts and circumstances of the case. If it involved
disputed facts, claims and counter claims requiring evidence of parties for
determination of issues or where the defence of a party touched the root of the
matter, a judgment could not be passed under Order, 12 Rule 6 dispensing with
the trial because the valuable right of going to trial could not be taken away
from the party unless the claim was admitted. A duty was, therefore, cast on
the court to ascertain the admission of facts and to render judgment on these
either in respect of the whole claim or part of it. The court could do so on
its own or on the application of a party and without waiting for the
determination of any other question between the parties….”.
The Delhi High Court very recently in a matter
captioned as Bhushan Kumar Gupta Vs Rajinder Kumar Gupta CS(OS) 244/2022 was
pleased to pass preliminary decree of partition upon filing of application
under Order 12 Rule 6 of Code of Civil Procedure and after finding admission in
the pleadings as regards the entitlement of shares between parties. Thus, what
clearly emanates from here is that a preliminary decree could be passed as per
the record or after application filed to that effect.
LAW OF LIMITATION
After
having dealt with the broad concept of partition, preliminary decree and final
decree, it would be worthwhile to deliberate on the question -whether the
provisions of Limitation Act are inapplicable to an application for drawing up
a final decree.
The
Section 3 of the Limitation Act, 1963 provides that subject to sections 4 to
24, every suit instituted, appeal preferred and application made after the
prescribed period shall be dismissed. The term 'period of limitation' is
defined as the period of limitation prescribed for any suit, appeal or
application by the Schedule to the Act (vide clause (j) of section 2 of the
Act). The term “prescribed period” is defined as the period of limitation
computed in accordance with the provisions of the said Act. The Third Division
of the Schedule to the said Act prescribes the periods of limitation for
Applications. The Schedule does not contain any Article prescribing the
limitation for an application for drawing up of a final decree. Article 136
prescribes the limitation for execution of any decree or order of civil court
as 12 years when the decree or order becomes enforceable. Article 137 provides
that for any other application for which no period of limitation is provided
elsewhere in that division, the period of limitation is three years which would
begin to run from the time when the right to apply accrues. It is thus clear
that every application which seeks to enforce a right or seeks a remedy or
relief on the basis of any cause of action in a civil court, unless otherwise
provided, will be subject to the law of limitation. But where an application
does not invoke the jurisdiction of the court to grant any fresh relief based
on a new cause of action, but merely reminds or requests the court to do its
duty by completing the remaining part of the pending suit, there is no question
of any limitation. Such an application in a suit which is already pending, which
contains no fresh or new prayer for relief is not one to which Limitation Act,
1963 would apply. These principles are evident from the provisions of the Code
and the Limitation Act and also settled by a series of judgments of different
High Court over the decades.
For
example, Lalta
Prasad vs. Brahma Din [AIR
1929 Oudh 456], Ramabai
Govind v. Anant Daji [AIR
1945 Bom. 338], Abdul
Kareem Sab vs. Gowlivada S. Silar Saheb [AIR 1957 AP 40], A. Manjundappa v. Sonnappa & Ors. [AIR 1965 Kar. 73], Sudarsan Panda & Ors. v. Laxmidhar
Panda & Ors.
[AIR 1983 Orissa 121], Laxmi
v. A.Sankappa Alwa [AIR
1989 Ker. 289].
On
similar lines are the following judgments:
Phoolchand
vs. Gopal Lal [AIR
1967 SC 1470], Hasham
Abbas Sayyad v. Usman Abbas Sayyad & Ors. [2007 (2) SCC 355] and Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare [2008 (8) SCC 198].
It
is a common event that that the defendants in a partition suit does not
voluntarily divide the property merely on the passing of a preliminary decree.
Thus, what follows is to file another proceedings i.e execution proceedings for
seeking enforcement of decree. Obviously, a litigant coming to court seeking
relief is not interested in receiving a paper decree, therefore, when he
succeeds in establishing his case he will be keen to reap the fruit of decree.
As regards, partition a litigant feels amused as to why should he be required
to get a preliminary decree first, then file an application and obtain a final
decree and then file an execution to get the actual relief. Obviously, people may
have a query - why not a continuous process?
A
misconceived notion also prevails in some trial judge’ mind to the effect that
their role is just to adjudicate and once preliminary decree of partition is
passed, that is the only judicial function. 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. This is also a fact that 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.
Ideally,
in suits for partition and other suits involving declaration of the right and ascertainment/quantification
of the relief, the process of the suit should be continuous, consisting of the
first stage of determination and declaration of the right, second stage of
ascertainment/division/quantification, and the third stage of execution to give
actual relief.
Conclusion
What
emanates, thus, from the foregoing that the Code of Civil Procedure does not
prescribe filing of any application for seeking final decree after pronouncing
of the preliminary decree, of course, there may be local amendments to the
contrary, in that case the situation may be different. When a preliminary
decree is passed in a partition suit, the proceedings should be continued by
fixing dates for further proceedings till a final decree is passed. It is the
duty and function of the court. Performance of such function does not require a
reminder from the litigant. The mindset should be to expedite the process of
dispute resolution. What therefore clearly follows as is held by Supreme Court
in Shub
Karan Bubna (supra) that the application filed by the plaintiff for
drawing up of a final decree, was rightly held to be not subject to any period of
limitation. The limitation period therefore shall not apply for seeking
pronouncing of final decree even if any application is filed to that effect.
Needless to say that passing of preliminary decree and subsequent passing of
final decree shall be a continuous process and therefore the limitation period
shall have no applicability in this regard.
--------------
Anil
K Khaware
Founder & Senior Associate
Societylawandjustice.com
