PRELIMINARY DECREE OF PARTITION: LAW AND LIMITATION

 

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.  

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                                           Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com