ss.2(20) and 54, 0. 20 r. 18, 0. 26 r. 13 - Partition suit - Preliminary decree passed - Application for final decree - ..... Resisted on the ground of limitation - HELD: Where an application does not invoke the jurisdiction of 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 is not one to which Limitation Act would apply - As declaration of rights or shares is only E the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit - 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 Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act) - Code does not contemplate filing of an application for final decree - Therefore, 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 'if- -It is the duty and function of the court which in the normal course has to be performed by the court itself as a continuation of the preliminary decree - Performance of such function does not require a reminder or nudge from the litigant - The mindset should be to expedite the process of dispute resolution - The application filed by plaintiff for drawing up of a final decree was rightly held to be not subject to any period of limitation - Court concerned would expedite the final decree proceedings - Limitation.

[2009] 14 (ADDL.) S.C.R. 40

A SHUB KARAN BUBNA @ SHUB KARAN PRASAD -1

BUB NA

v.

SITA SARAN BUBNA & ORS.

(Special Leave Petition (C) No.17932 of 2009)

B AUGUST 21, 2009

[R.V. RAVEENDRAN AND B. SUDERSHAN REDDY, JJ.]

CODE OF CIVIL PROCEDURE, 1908:.

c

ss.2(20) and 54, 0. 20 r. 18, 0. 26 r. 13 - Partition suit -

Preliminary decree passed - Application for final decree - .....

Resisted on the ground of limitation - HELD: Where an

application does not invoke the jurisdiction of court to grant ....

;.--

.D 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 is not one to which Limitation

Act would apply - As declaration of rights or shares is only

E the first stage in a suit for partition, a preliminary decree does

not have the effect of disposing of the suit - 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

F

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 Limitation Act) nor an application

seeking a fresh relief (falling under Article 137 of Limitation

Act) - Code does not contemplate filing of an application for

final decree - Therefore, when a preliminary decree is passed

G in a partition suit, the proceedings should be continued by

fixing·dates for further proceedings till a final decree is passed 'f-

-It is the duty and function of the court which in the normal

course has to be performed by the court itself as a

continuation of the preliminary decree - Performance of such

H 40 

SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA 41

v. SITA SARAN BUBNA

function does not require a reminder or nudge from the litigant A

- The mindset should be to expedite the process of dispute

resolution - The application filed by plaintiff for drawing up of

a final decree was rightly held to be not subject to any period

of limitation - Court concerned would expedite the final

decree proceedings - Limitation. 8

La/ta Prasad v. Brahma Din AIR 1929 Oudh 456;

Ramabai Govind v. Anant Daji AIR 1945 Born. 338; Abdul

Kareem Sab v. Gowlivada S. Silar Saheb AIR 1957 AP 40;

A. Manjundappa v. Sonnappa & Ors. AIR 1965 Kar. 73; c Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors. AIR 1983

Orissa 121; Laxmi v. A.Sankappa Alwa AIR 1989 Ker. 289;

--', Phoolchand vs. Gopal Lal AIR 1967 SC 1470; Hasham -:::r Abbas Sawad v. Usman Abbas Sayyad & Ors. 2007 (2) SCC -( 355; and Bikoba Deora Gaikwad v. Hirabai Marutirao .... Ghorgare 2008 (8) sec 198, relied on D

DECREE - Preliminary decree and final decree -

Concept of, in the context of partition suits and mortgage suits

- HELD: There is a fundamental difference between mortgage

suits and partition suits - In a preliminary decree in a E

mortgage suit (whether a decree for foreclosure under r.2 or

-\ a·decree for sale under r.4 of 0 34 CPC), the amount due is·

.. determined and declared and the time within which the amount

has to be paid is also fixed and the consequence of nonpayment within the time stipulated is also specified - A F

preliminary decree in a mortgage suit decides all the issues

and what is left out is only the action to be taken in the event

of non-payment of the amount- When the amount is not paid,

plaintiff gets a right to seek a final decree for foreclosure or

for sale - On the other hand, in a partition suit the preliminary G decree only decides a part of the suit and, therefore, an

application for passing a final decree is only an application

in a pending suit, seeking further progress - In partition suits,

- there can be a preliminary decree followed by a final decree,

. or there can be a decree which is a combination of

H 

42 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A preliminary decree and final decree or there can be merely a

single decree with certain further steps to be taken by the court

- In fact several applications for final decree are permissible

in a partition suit - The application for final decree as and

when made is considered to be an application in a pending

B suit for granting the relief of division by metes and bounds -

Therefore, the concept of final decree in a partition suit is

different from the concept of final decree in a mortgage suit -

Consequently, an application for a final decree in a mortgage

suit is different from an application for final decree in a

c partition suit.

SUIT:

Suit for partition - Partition - Concept of - HELD:

'Partition' is a re-distribution or adjustment of pre-existing )-

D 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 severalty

E - 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 partition - ' /

'Separation of share' is a species of 'partition' - When all co- '

owners get separated, it is a partition - Separation of share/s

F refers to a division where only one or only a few among several

co-ownerslcoparceners get separated, and others continue to

be joint or continue to hold the remaining property jointly

without division by metes and bounds - In a suit for partition

or separation of a share, the prayer is not only for declaration

G

of plaintiff's share in the suit properties, but also division of

his share by metes and bounds - This involv(!]s 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

H

in what manner the property/properties should be divided by

metes and bounds. 

.. '-..'

7

~

~

..

-tSHUB KARAN BUBNA @ SHUB KARAN PRASAD

BUBNA v. SITA SARAN BUBNA

LEGISLATION:

43

Suit - Filing of suit and securing relief to litigant -

Proceedings in between - Need for legislation to avoid

multiplicity of proceedings - HELD: Cases have been found

where a suit is decreed or a preliminary decree is granted

within a year or two and 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 -

A conceptual change regarding civil litigation, is required so

that the emphasis is not only on disposal of suits, but also

on securing relief to the litigant - It is hoped that the Law

Commission and Parliament will bestow their attention on this

issue and make appropriate recommendations/amendments

so that the suit will be a continuous process from the stage of

its initiation to the stage of securing actual relief- The present

system involving a proceeding for declaration of the right, a

separate proceeding for quantification or ascertainment of

relief, and another separate proceeding for enforcement of the

decree to secure the relief, is outmoded and unsuited for

present requirements - The Code of Civil Procedure should

provide for a continuous and seamless process from the stage

of filing of suit to the stage of getting relief - In so far final

decree proceedings are concerned, there is no reason for

even legislative intervention - As the provisions of the Code

stand as on date, initiation of final decree proceedings does

not depend upon an application for final decree for initiation

(unless the local amendments require the same) - Practice

and Procedure.

Case Law Reference:

AIR 1929 Oudh 456 relied on para 8

AIR 1945 Born. 338 relied on pa~a 8

A

B

c

D

E

F

'

G

H 

-44 SUPREME COURT REPORTS (2009] 14 (ADDL.) S.C.R.

A AIR 1957 AP 40 relied on para 8

AIR 1965 Kar. 73 relied on para 8

AIR 1983 Orissa 121 relied on para 8

B AIR 1989 Ker. 289 relied on para 8

AIR 1967 SC 1470 relied on para 8

2001 (2) sec 355 relied on para 8

2008 (8) sec 198 relied on para 8

c

CIVIL APPELLATE JURISDICTION : SLP (Civil) No.

17932/2009.

From the Judgment and Order dated 15.1.2009 of the High ... Court of Judicature.at Patna in C.R. No. 2216/2008 .. 'r

D

S.B. Sanyal and Subhro Sanyal for the Petitioner.

The Order of the Court was delivered by

-

E

R.V. RAVEENDRAN, J. The first respondent and his

mother filed a suit for p~rt!t:on against _getitioner and two others

in the year 1960 in the court of the First Additional Judge, fMuzaffarnagar, for partition and separate possession of their

r

one-third share in the plaint schedule properties and for ..rendition of accounts. The suit was in respect of three nonF agricultural plots and some movables. After contest the suit was

decreed on 25.2.1964 directing a preliminary decree for .....

partition be drawn in regard to the one-third share of the

plaintiffs in the said plots and a final decree be drawn up

through appointment of a Commissioner for actual division of

G the plots by metes and bounds.

-r

2. Feeling aggrieved the petitioner (and others) filed an

appeal before the Patna High Court which was dismissed on

29.3.197 4. The first respondent filed an application on 1.5.1987

H for drawing up a final decree. The petitioner filed an application 

SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA 45

v. SITA SARAN BUBNA [R.V. RAVEENDRAN, J.]

~·

on 15.4.1991 to drop the final decree proceedings as it was A

barred by limitation. The said application was dismissed by the

trial court holding that once the rights/shares of the plaintiff had

been finally determined by a preliminary decree, there is no

limitation for an application for affecting the actual partition/

division in accordance with the preliminary decree, as it should B

be considered to be an application made in a pending suit. The

said order was challenged by the petitioner in a revision petition

which was dismissed by the High Court order dated 15.1.2009.

The petitioner has filed this special leave petition seeking leave

to appeal against the said decision of the High Court. c

3. The appellant contends that when a preliminary decree

..... is passed in a partition suit, 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

D /

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 E

-\, beyond three years from the date of preliminary decree (that

111111( is 12.3.1964) or at all events beyond three years from the date

when the High Court dismissed the defendant's appeal (that

is 29.3.1974) would be barred by limitation. Reliance was

placed by the petitioner on the decision of this Court in Sita/ F

Parshad v. Kishori Lal [AIR 1967 SC 1236], the decision of

the Privy Council in Saiyid Jawad Hussain v. Gendan Singh

[AIR 1926 PC 93) and a decision of the Patna High Court in

Thakur Pandey v. Bundi Ojha [AIR 1981 Patna 27) in support

of his contention. G i'

The issue:

4. 'Partition' is a re-distribution or adjustment of preexistin!J rights, among co-owners/coparceners, resulting in a

division of lands or other properties jointly held by them, into H 

46 SUPREME COURT REPORTS [2009] 14 (ADDL:) ·s.C.R.

A 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

severalty. A partition of a property can be only among those

having a share or interest in it. A person who does not have a

B share in such property cannot obviously be a party to a partition.

'Separation of share' is a species of 'partition'. When all coowners 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

c 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 )r

D 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 plaintiffs 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

E 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? r

'

5. In a suit is for partition or separation of a share, the court

F 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

G 'preliminary decree' under Order 20 Rule 18(2) of the Code.

The consequential division by metes and bounds, considered -rto be a ministerial or administrative act requiring the physical

inspection, measurements, calculations and considering

various permutations/ combinations/alternatives of division is

H referred to the Collector under Rule 18( 1) and is the subject 

SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA 4 7

 v. SITA SARAN BUBNA [RV. RAVEENDRAN, J.]

' ,._ matter of the final decree under Rule 18(2). The question is A

whether the provisions of Limitation Act are inapplicable to an

application for drawing up a final decree.

6. Rule 18 of Order 20 of the Code of Civil Procedure

('Code' for short) deals with decrees in suits for partition or 8

separate possession of a share therein which is extracted

below:

'f "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 c

possession of a share therein, then, -

(1) if and in so far as the decree relates to an estate

'f'

assessed to the payment of revenue to the Government,

' the decree shall declare the rights of the several parties D :-> interested in the property, but shall direct such partition or '

I 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; E

"""'

(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 F

.. 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 :

G

"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

H 

48 SUPREME COURT.REPORTS [2009] 14 (ADDL.) S.C.R.

-'

A suit. It may be partly preliminary and partly final." 1 '

r~Section 54 of the Code dealing with partition of estate or

separation of share, relevant for purposes of Rule 18(1) reads

thus:

B "Where the decree is for the partition of an undivided

estate assessed to the payment of revenue of the f"

government, or for the separate possession of a share of

such an estate, the partition of the estate or the sepa'ration

)-

of the share shall be made by the Collector or any gazetted

c sub-ordinate of the Collector deputed by him in this behalf,

in accordance with the law (if any) for the time being in I>

force relating to the partition, or the separate possession

of shares, of such estates." ,

\

y

D 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

E

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 r

rights as declared in such decree."

7 .. We may now turn to the provisions of the Limitation Act,

F 1963. Section 3 of the Act 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 t

'period of limitation' is defined as the period of limitation t prescribed for any suit, appeal or application by the Schedule

G 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 limitatio'n for Applications. The Schedule does

H not contain any Article prescribing the limitation for an

-. 

v

~

.

.. ..,,

.. '(

...;

......

SHUB KARAN BUBNA @ SHUB KARAN PRASAD BUBNA 49

v. SITA SARAN BUBNA [R.V. RAVEENDRAN, J.]

application for drawing up of a final decree. Article 136 A

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 8

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 c

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 D

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 (See : for

example, La/ta Prasad vs. Brahma Din [AIR 1929 Oudh 456], E Ramabai Govind v. Anant Daji [AIR 1945 Born. 338], Abdul

Kareem Sab vs. Gow/ivada S. Sitar 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].

We may F also draw support from the judgments of this Court in

. 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].

G

8. 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 H 

50 SUPREME COl}RT REPORTS (2009) 14 (ADDL.) S.C.R.

'<>·

i

A of the preliminary decree. Sometimes either on account of the -1

pendency of an appeal or other circumstances, the court

passes the decree under Rule 18(1) or a prelim.inary 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 \

B 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. Be that as it may.·

9. The following principles emerge from the above """

c

discussion regarding partition suits :

(9.1.) In regard to estates 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 y

D (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. Such

entrustment to the Collector under law was for two reason$. First

E is that Revenue Authorities are more conversant with matters

relating to agricultural lands. Second is to safeguard the ' interests of government in regard to revenue. (The second ~ \.

,.

reason, which was very important in the 19th century and early . .,

20th century when the Code was made, has now virtually lost

F its relevance, as revenue from agricultural lands is negligible).

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 l

with the partitions by the Collector, except to the extent of any ccomplaint of a third party affected thereby.

G (9.2.) In regard to immovable properties (other than

agricultural lands paying land revenue), that is buildings, plots -i,- .__>-etc. or movable properties:

(i) where the court can conveniently and without further renquiry make the division without the assistance of any .,.._H ' 

""""

_.

.. ,

...

I

1

SHUB KARAN BUBNA@ SHUB KARAN PRASAD BUBNA 51

v. SITA SARAN BUBNA [RV. RAVEENDRAN, J.]

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,

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 nonagricultural 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

J-Utility and site conditions. When the Commissioner gives his

1!><J report as to the manner of division, the proposals contained in

C><i 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

ci 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.

(9.3.) 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,

A

e

c

0

E

F

G

H 

52 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.

A takes place by passing a final decree. An application 1

requesting the court to take necessary steps to draw up a final

I

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

B (falling under Article 137 of 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. '"'

c

10. The three decisions relied on by the petitioner (refem~d

to in para 3 above) are not relevant for deciding the issue

arising in t~is case. They all relate to suits for mortgage and ......not partition. There is a fundamental difference between

mortgage suits and partition suits. In a preliminary decree in a

mortgage suit (whether a decree for foreclosure under Rule 2 y

D or a decree for.sale under Rule 4 of Order 34 of the Code), :'

the amount due is determined and declared and the time within

which the amount has to be. paid is also fixed and the

consequence of.non payment within the time stipulated is also

specified. A preliminary decr:.ee in a mortgage suit decides all

E the issues and what is left out is only the action to be taken in

the event of non payment of the amount. When the amount is

;· not paid the plaintiff gets a right to seek a final decree for " foreclosure or for sale. On the other hand, in a partition suit the ~preliminary decrees only decide a part of the suit and therefore

F an application for passing a final decree is only an application

in ~ pending suit, seeking further progress. In partition suits,

there can be a preliminary decree followed by a final decree,

or there can be a decree which is a combination of preliminary

decree and final decree or there can be merely a single decree

G with certain further steps to be taken by the court. In fact several

applications for final decree are permissible in a partition suit. ·~

A decree in a partition suit enures to the benefit of all the coowners and therefore, it is sometimes said that there is really

no judgment-debtor in a partition decree. A preliminary decree

H for partition only identifies the properties to be subjected to

~

I 

SHUB KARAN BUBNA @ S!::iUB KARAN PRASAD BUBNA 53

v. SITA SARAN BUBNA [RV. RAVEENDRAN, J.]

~

partition, defines and declares the shares/rights of the parties: A

That part of the prayer relating to actual division by metes and

bounds and· allotment is left for being completed under the final

decree proceedings. Thus the application for final decree as

and when made is considered to be an application in a pending

suit for granting the relief of division by metes and bounds. B

Therefore, the concept of final decree in a partition suit is

different from the concept of final decree in a mortgage suit.

Consequently an application for a final decree in a mortgage

suit is different from an application for final decree in partition

suits. c .,..., A suggestion for debate and legislative action

.._.. 11. The century old civil procedure contemplates

judgments, decrees, preliminary decrees and final decrees and

execution of decrees. They provide for a 'pause' between a D

decree and execution. A 'pause' has also developed by

practice between a preliminary decree and a final decree. The

'pause' is to enable the defendant to voluntarily comply with the

decree or declaration contained in the preliminary decree. The

ground reality is that defendants normally do not comply with E

°l\ decrees without the pursuance of an execution. In very few

cases, the defendants in a partition suit, voluntarily divide the

property on the passing of a preliminary decree. In very few

cases, defendants in money suits, pay the decretal amount as

per the decrees. Consequently, it is necessary to go to the F

second stage that is levy of execution, or applications for final

decree followed by levy of execution in almost all cases.

12. A litigant coming to court seeking relief is not interested

in receiving a paper decree, when he succeeds in establishing

G ..,. his case. What he wants is relief. If it is a suit for money, he

wants the money. If it is a suit for property, he wants the.

property. He naturally wonders why when he files a suit for

recovery of money, he should first engage a lawyer and obtain

a decree and then again engage a lawyer and execute the

decree. Similarly, when he files a suit for partition, he wonders H 

54 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A why he has to first secure a preliminary decree, then file an -+ '

application and obtain a final decree and then file an execution

to get the actual relief. The common-sensical query is: why not

a continuous process? The litigant is perp_lexed as to why when

a money decree is passed, the court does not fix the date for

B payment and if it is not paid, proceed with the execution; when

a preliminary decree is passed.in a partition suit, why the court

does not forthwith fix a date for appointment of a Commissioner

for division and make a final decree and deliver actual 'r· !

possession of his separated share. Why is it necessary for him

c to remind the court and approach the court at different stages?

13. Because of the artificial division of suits into preliminary ........

decree 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 T

D 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

E cases, but also on early and easy securement of relief for

which the party approaches the court. Even among lawyers, I

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 c~nduct the final

F decree proceedings and then give it to their clerks for

conducting the execution proceedings. 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,

G we have found cases where a suit is decreed or a preliminary

decree is granted within a year or two, the final decree f'

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

H and Lawyers should give as much importance to final decree 

I

.

SHUB KARAN BUBNA @SHUB KARAN PRASAD BUBNA 55

v. SITA SARAN BUBNA [R.V. RAVEENDRAN, J.)

t- proceedings and executions, as they give to the main suits. A

14. In the present system, when preliminary decree for

partition is passed, there is no guarantee that the plaintiff will

see the fruits of the decree. The proverbial observation by the

Privy Council is that the difficulties of a litigant begin when he B

obtains a decree. It is necessary to remember that success in

a suit means nothing to a party unless he gets the relief.

-f Therefore to be really meaningful and efficient, the scheme of

the Code should enable a party not only to get a decree quickly,

but also to get the relief quickly. This requires a conceptual c change regarding civil litigation, so that the emphasis is not only

on disposal of suits, but also on securing relief to the litigant.

We hope that the Law Commission and Parliament will bestow

1

their attention on this issue and make appropriate

recommendations/amendments so that the suit will be a

continuous process from the stage of its initiation to the stage D

of securing actual relief. The present system involving a

proceeding for declaration of the right, a separate proceeding

for quantification or ascertainment of relief, and another separate

proceeding for enforcement of the decree to secure the relief,

is outmoded and unsuited for present requirements. If there is E

·:.. a practice of assigning separate numbers for final decree

proceedings that should be avoided. Issuing fresh notices to

the defendants at each stage should also be avoided. The

Code of Civil Procedure should provide for a c.ontinuous and

seamless process f,rom the stage of filing of suit to the stage F

of getting relief. In money suits and other suits requiring a single

decree, the process of suit should be a continuous process

consisting of the first stage relating to determination of liability

and then the second stage of execution and recovery, without

any pause or stop or need for the plaintiff to initiate a separate G

t proceedings for execution. 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/ H 

56 SUPREME COURT REPORTS [2009] 14 (ADDL) S.C.R. /

: '

,,

.)

A quantificati'on, and the third stage of execution Jo give actual i

relief.

..Conclusion

B

·15. In so far final decree proceedings are concerned, we

see no reason for even legislative intervention. As the

provisions of the -Code stand at present, initiation of final decree

proceedings does not depend upon an application for final \---

decree for initiation (unless the local amendments require the

same). As noticed above, the Code does not contemplate filing

c an application for ·final decree. Therefore, 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. r Performance of such function does not require a reminder or

D nudge from the litigant. The mindset should be to expedite the

process of dispute resolution.

16. In view of the foregoing, we are of the view that the

application filed by the plaintiff in this case for drawing up of a

E final decree, was rightly held to be not subject to. any period of

limitation. We therefore dismiss this special leave petition as

having no merit, with a request to expedite .the final decree f

proceedings. ·

R.P. Appeal dismissed.

'· "' 

Transfer of Property Act, 1882: s. 52 - Transfer of property by a defendant pending a partition suit - Partition suit found to be not collusive - Decree in partition suit - In terms of decree, the pendente lite transferor found to have only half share in the property and she was allotted only one fourth of the property purchased by the transferee - Suit by transferee for declaration of title and permanent injunction in regard to transferred property- Courts below dismissed the suit - Held: Suit ought not to have been dismissed in entirety even if the sale was hit by the Doctrine of /is pendens - Transferee's title will be saved in respect of that part of the transferred property allotted to the transferor in the partition suit - Transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion.

A

B

[2010] 14 (ADDL.) S.C.R. 560

T.G. ASHOK KUMAR

v.

GOVINDAMMAL AND ANR.

(Civil Appeal No.10325 of 2010)

DECEMBER 8, 2010

[R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

Transfer of Property Act, 1882: s. 52 - Transfer of property

by a defendant pending a partition suit - Partition suit found

C to be not collusive - Decree in partition suit - In terms of

decree, the pendente lite transferor found to have only half

share in the property and she was allotted only one fourth of

the property purchased by the transferee - Suit by transferee

for declaration of title and permanent injunction in regard to

D transferred property- Courts below dismissed the suit - Held:

Suit ought not to have been dismissed in entirety even if the

sale was hit by the Doctrine of /is pendens - Transferee's title

will be saved in respect of that part of the transferred property

allotted to the transferor in the partition suit - Transfer in

E regard to the remaining portion of the transferred property to

which the transferor is found not entitled, will be invalid and

the transferee will not get any right, title or interest in that

portion.

Transfer of Property: Suggestion to Law makers -

F Absence of a mechanism for prospective purchasers to verify

whether a property is subject to any pending suit or a decree

or attachment cause lot of hardship, loss, anxiety and leads

to unnecessary litigation - All these inconveniences, risks

and misery could be avoided and the property litigations

G could be reduced to a considerable extent, if there is some

satisfactory anct reliable method by which a prospective

purchaser can ascertain whether any suit is pending (or

whether the property is subject to any decree or attachment)

H 560 

T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 561

before he decides to purchase the property - Law A

Commission and the Parliament much consider such

amendment or other suitable amendment to cover the

existing void in title verification or due diligence procedures

- Also, registration of agreements of sale should be made

compulsory to reduce property litigation - Registration Act, B

1908 - Legislation.

Appeal: Appeal before Supreme Court - Concurrent

findings of facts by the three courts below that the partition suit

·was not collusive - Interference with - Held: Not called for - C

Constitution of India, 1950 - Article 136.

The appellant filed a suit for declaration of his right.

and title and permanent injunction in regard to the suit

property. The case of the appellant was that he

purchased the suit property from the second respondent D

under sale deed dated 11.4.1990 and he was a bona

fide purchaser and was unaware of the partition suit

between the second respondent and the first

respondent who was the step daughter of the second

respondent. On 17.3.1994, the said suit for partition was E

decreed by preliminary decree whereby the two

respondents were held entitled to half share each in

the properties including the suit property. In the final

decree proceedings, the Commissioner divided the suit

property in such a manner that nearly three-fourth F

portion of the suit property was allotted to the share of

the first respondent and only about a one-fourth portion

was allotted to the share of the second respondent.

The first respondent resisted the suit contending

that the appellant had purchased the suit property G

during the pendency of her suit for partition; and that

being a purchaser pendente lite, the sale in his favour

was hit by the doctrine of /is pendens and, therefore,

he could not claim any right in the suit property; and

she denied that there was any collusion between her H 

562 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A and the second respondent. The second respondent

did not contest the suit.

The trial court dismissed the suit on the ground

that the sale in favour of the appellant was hit by the

8 doctrine of /is pendens. The appeal filed by the appellant

was dismissed by the first appellate cot'.lrt. The High

Court dismissed the second appeal. Aggrieved, the

appellant filed the instant appeal.

c

Partly allowing the appeal, the Court

HELD: 1. The trial court, the first appellate court

and the High Court on appreciating the evidence have

held that the partition suit was not collusive and that

there was a valid reason for a larger portion of the suit

0 property being allotted to the first respondent, plaintiff

in the partition suit as the portion allotted to the second

respondent had a house therein and to equalize the

value, a larger portion (vacant plot) was allotted to the

first respondent. There is no reason to interfere on that

E score. [Para 8] [570-C-D]

Jayaram Mudaliar v. Ayyaswami AIR 1973 SC 569;

Hardev Singh v. Gurmail Singh (2007) 2 SCC 404. - relied

on.

F 2.1. The principle underlying Section 52 of the

Transfer of Property Act, 1882 is clear. During the

pendency in a court of competent jurisdiction of any

suit which is not collusive, in which any right of an

immovable property is directly and specifically in

G question, such property cannot be transferred by any

party to the suit so as to affect the rights of any other

party to the suit under any decree that may be made in

such suit. If ultimately the title of the pendente lite

transferor is upheld in regard to the transferred property,

the transferee's title will not be affected. On the other H 

T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 563

hand, if the title of the pendente lite transferor is A

recognized or acc~pted only in regard to a part of the

transferred property, then the transferee's title will be

s.aved only in regard to that extent and the transfer in

regard to the remaining p9rtion of the transferred

property to which the transferor is found not entitled, B

will be invalid and the transferee will not get any right,

title or interest in that portion. If the property transferred

pendente lite, is allotted in entirety to some other party

or parties or if the transferor is held to have no right or

title in that property, the transferee will not have any c

title to the property. Where a co-owner alienates a

property or a portion of a property representing to be

the absolute owner, equities can no doubt be adjusted

while making the division during the final decree

proceedings, if feasible and practical (that is without 0 causing loss or hardship or inconvenience to other

parties) by allotting the property or portion of the

property transferred pendente lite, to the share of the

transferor, so that the bonafide transferee's right and

title are saved fully or partially. [Para 10] [571-C-H; 572- E

A]

2.2. In the instant case, a suit for partition filed by

the first respondent against the second respondent in

the year 1985 which included the suit property, was

pending in a court of competent jurisdiction as on the F

date of sale (11.4.1990) by the second respondent in

favour of the appellant. The partition suit was not

collusive. Having regard to Section 52 of the Act, the

sale by the second respondent in favour of the

appellant did not in any way affect the right-of the first G

respondent (plaintiff in the partition suit) or the decree

made in her favour in the said partition suit. It is thus

evident that the sale by the second respondent in favour

of the appellant though not void, did not bind the first

respondent. On the other hand, the sale in favour· of H 

564 SUPREME COURT REPORTS (2010) 14 (ADDL.) S.C.R.

A appellant was subject to the right declared or recognized

in favour of the first respondent-plaintiff under the

decree passed in the pending partition suit. The sale

pendente lite would, therefore, be subject to the decree

in the partition suit. In the final decree passed in the

B partition suit, the major portion of the suit property was

allotted to the share of the first respondent and to that

extent, the sale in favour of the appellant would be

ineffective. But in regard to the remaining portion of

the suit property which stood allotted to the share of

c the second respondent in the final decree in the partition

suit, the sale by the second respondent in favour of

the appellant would be effective, valid and binding on

the second respondent and to that extent, the appellant

is entitled to a declaration of title and consequential

0 injunction. The suit ought not to have been dismissed

in entirety even if the sale by the second respondent in

favour of appellant on 11.4.1990 was hit by the doctrine

of tis pendens. The second respondent cannot avoid

the sale made by her on the ground that she was held

E to be not the exclusive owner, in the pending partition

suit. Therefore, the courts below ought to have decreed

the appellant's suit in part, in regard to the portion of

the suit property that fell to the share of second

respondent instead of dismissing the suit. Therefore,

the declaration of title with consequential permanent·

F injunction as prayed is granted in regard to that portion

of the suit property that was allotted to the second

respondent in the partition suit. [Paras 11, 12, 16] [572-

B-H; 573-A-B; 576-B]

G A related suggestion to the Law makers

3.1. Absence of a mechanism for prospective

purchasers to verify whether a property is subject to

any pending suit or a decree or attachment cause lot

H of hardship, loss, anxiety and unnecessary litigation. At 

T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 565

present, a prospective purchaser can find out about A

any existing encumbrance over a property either by

inspection of the Registration Registers or by securing

a certificate relating to encumbrances (that is copies of

entries in the Registration Registers) from the

jurisdictional Sub-Registrar under Section 57 of the B

Registration Act, 1908. But a prospective purchaser has

no way to ascertain whether there is an.y suit or

proceeding pending in respect of the property, if the

person offering the property for sale does not disclose

it or deliberately suppresses the information. The C

inconveniences, risks, hardships and misery as a result

of such transfers could be avoided and the property

litigations could be reduced to a considerable extent, if

there is some satisfactory and reliable .method by which

a prospective purchaser can ascertain whether any suit

is pending (or whether the property is subject to any D

decree or attachment) before he decides to purchase

the property. A solution has been found to this problem

in the States of Maharashtra by an appropriate local

amendment to section 52 of the Act, by Bombay Act 4

of 1939. The Law Commission and the Parliament must E

consider such amendment or other suitable amendment

to cover the existing void in title verification or due

diligence procedures. Provision can also be made for

compulsory registration of such notices in respect of

decrees and in regard to attachments of immoveable F

properties. [Paras 13, 14] [573-C-H; 574-A-C; 575-C]

3.2. At present in most of the States, agreements to

sell are not compulsorily registrable as they do not

involve transfer of any right, title or interest in an G

immoveable property. Registration of agreements of sale

will reduce property litigation. It will go a long way to

discourage generation and circulation of black money

in real estate matters, as also undervalua.tion of

documents for purposes of stamp duty. It will also H 

566 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.

A discourage the growth of land mafia and muscleman

who dominate the real estate scene in various parts of

the country. [Para 15) [575-0-G)

B

. c

D

E

Case Law Reference:

AIR 1973 SC 569

c2001) 2 sec 404

relied on

relied on

Para 9

Para 9

CIVIL APPELLATE JURISDICTION Civil Appeal No.

10325 of 2010.

From the Judgment & Order dated 01.09.2009 of the

High Court of Judicature at Madras in S.A. No. 1141 of 2008.

R. Balasubramaniam, B. Karunakaran, V. Balachandran

for the Appellant.

N. Shobha, Sriram J. Thalapathy, Adhi Venkataraman,

S.P. Parthasarthy for the Respondents.

The Judgment of the Court was delivered by

R.V.RAVEENDRAN, J. 1. Notice to respondents was

issued limited to the question whether the High Court ought

to have decreed the appellant's suit for declaration and

consequential injunction at least in respect of the portion of

the suit property which was allotted to the share of second

F respondent in the earlier partition suit filed by the first

respondent. Leave is granted only in regard to that question.

2. The appellant was the plaintiff in a suit for declaration

of title and permanent injunction in regard to the suit property,

G that is, a plot measuring East to West : 49 feet and north

south 81 feet, total extent of 3969 sq.ft (forming part of Natham

Survey No. 178 (New No. 137-138) of a total extent of 4

acres 25 cents situated at Kakkalur Village, Tiruvallur Taluk

and District). The appellant filed the said suit in the year

H 2000 in the court of Subordinate Judge, Thiruvallur (OS 

T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 567

[R.V. RAVEENDRAN, J.]

No.68/2000) subsequently transferred and renumbered as OS A

No. 138 of 2004 on the file of the District Munsiff, Thiruvallur.

B

3. The case of appellant in brief is as under: that the suit

property was purchased by the second respondent under sale

deed dated 4.3.1957; that she was in possession and

enjoyment of the suit property as absolute owner and had

mortgaged it in favour of appellant's sister (T.N. Latha) on

30.6.1983; that second respondent sold the suit property in

favour of the appellant under sale deed dated 11.4.1990 and

delivered possession thereof to him in pursuance of the sale; C

that though the suit property was the self acquired property

of the second respondent, the first respondent who is her

step-daughter, filed a collusive suit against the second

respondent in OS No. 8/1985 on the file of the Sub-ordinate

Judge, Thiruvallur alleging that the suit property and several

0 other properties belonged to her father Ekambara Reddy and

that she and second respondent had each an half share in

those properties; that the appellant is a bona fide purchaser

of the suit property from second respondent and he was

unaware of the pendency of the said suit for partition in O.S.

No.8/1985; that subsequently the said suit for partition filed

by the first respondent was decreed vide preliminary decree

dated 17.3.1994 holding that the first respondent was entitled

to half share in the properties described as Items 1 to 6 in

the partition suit schedule (which included the· suit property

(as Item No.6); that in the final decree proceedings, a

Commissioner was appointed to divide the properties; that

on the basis of the Commissioner's report, a final decree

was passed on 7.4.2000 dividing the properties; that on

account of collusion between first and second respondents,

E -

F

the Commissioner's report divided the suit property in a G

manner that nearly three fourth portion of the suit property

was allotted to the share of the first respondent and only

about a one-fourth portion was allotted to the share of the

second respondent; and that adversely affected his right and

title to the suit property and therefore it became necessary H 

568 SUPREME COURT REPORTS [2010) 14 (AODL.) S.C.R.

A for him to file a suit for declaration of his right and title to the

suit property with a consequential permanent injunction.

4. The first respondent resisted the suit contending that

the appellant had purchased the suit property during the

8 pendency of her suit for partition and that being a purchaser

pendente lite, the sale in his favour was hit by the doctrine

of /is pendens and therefore he could not claim any right in.

the suit property. She asserted that the suit property was not

the self-acquired prop.erty of the second respondent,. and that

C the suit property was purchased by her father in the name of

the second respondent. She denied that there was any

collusion between her and the second respondent. The

second respondent did not contest the suit.

5. The trial court by judgment dated 6.7.2005 dismissed

D the appellant's suit. It held that the suit property was not the

self acquired property of second respondent and that there

was no collusion between first and second respondents; and

that the appellant having purchased the suit property under

sale dated 11.4.1990 during the pendency of the suit for

E partition (OS No.8/1985) filed by the first respondent against

the second respondent, the sale in his favour was hit by the

doctrine of /is pendens and that therefore the appellant did

not get any title to the suit property and he was not entitled

to the relief of declaration and injunction sought by him. The

F appeal filed by the appellant was dismissed by the first

appellate court by judgment and decree dated 26.3.2008.

The second appeal filed by the appellant was dismissed by

the High Court by the impugned judgment dated 1.9.2009 by

holding that appellant was a pendente lite purchaser,

G attracting the doctrine of tis pendens under Section 52 of

Transfer of Property Act, 1882 ('Act' for short) and therefore

the courts below were justified in ignoring the purchase by

appellant. Feeling aggrieved the appellant filed the present

appeal.

H 6. The partition suit was decreed holding that the first 

T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 569

[R.V. RAVEENDRAN, J.]

respondent was entitled to half share in the six properties A

which were the subject matter of partition suit including the

suit property. In the final decree proceedings, an equitable

division was made accepting the report of the Commissioner

who had divided the suit property as per the sketch (Ex. C5) resJlting in approximately three-fourth of the suit property 8

(vacant site portion) being allotted to the first respondent and

only the remaining one-fourth of the suit property (site with

house thereon) being allotted to the second respondent. The

contention of the appellant that the partition suit by the first

respondent against the second respondent was collusive, and c

that the suit property was the self acquired property of the

second respondent and the first respondent did not have a

share therein, have been concurrently negatived. The

alternative contention of the appellant that even if the first

respondent had a half share therein, the division and allotment 0 of the properties in the partition suit ought to have been

made in a manner that the entire suit property was allotted

to the share of second respondent to work out equities, . was

also negatived by the courts below.

7. As per the Report of Commissioner, schedule Items E

1 to 5 in the partition suit were agricultural lands in all

measuring 44 cents (less than half an acre) and they were

divided equally by allotting 22 cents to first respondent and

22 cents to second respondent. Item No.6 was a house site

with a house in the north western portion. As per the F

Commissioner's sketch (Ex.C-5), it measured East to West,

48'3" on the northern side and 53'3" on the southern side

and North to South : 53'9" on the eastern side and 60'3" on

the western side. The entire plot was shown by the letters 'A,

8, C, D, E, F, G, H, A' and as per the final decree based G

on the Commissioner's report, the North Western portion

shown by the letters A, 8, I, H, A measuring East to West:

24' on the north and 24'9" on the south, and North to South

: 28'9" on the east and 29' on the west with the house thereon

(measuring 16' x 27'3") was allotted to the share of the H 

570 SUP~EM!;. COURT REPORTS (2010] 14 (ADDL.) S.C.R.

A second respondent; and the entire remaining portion which

was of an inverted L shape shown by the letters B, C, D, E,

F, G, H, I, B was allotted to the share of the first respondent.

As Items 1 to 5 in the partition suit schedule were small

agricultural lands, they were equally divided and it was not

B possible to allot Item No.6 in entirety to the second

respondent. ·

8. The trial court, first appellate court and the High Court

on appreciating the evidence have held that the partition suit

. C was nofcollusive. There was a valid reason for a larger portion

of Item No.6 being allotted to first respondent, as the portion

allotted to the second respondent had a house therein and to

equalize the value, a larger portion (vacant plot) was allotted

to first respondent. Therefore this court found no reason to

interfere on that score and issued notice in the special leave

D petition restricted to the question whether the appellant should

have been granted a decree at least in regard to the onefourth portion in the suit property that was allotted to the

second respondent instead of non-suiting him in entirety. That

limited issue alone arises for our consideration.

E

F

G

H

9. Section 52 dealing with tis pendens is relevant and

it is extracted below :

"Transfer of property pending suit relating thereto.-

During the pendency in any Court having authority within

the limits of India excluding the State of Jammu and

Kashmir or established beyond such limits by the Central

Government of any suit or proceeding which is not

collusive and in which any right of immovable property is

directly and specifically in question, the property cannot

be transferred or otherwise dealt with by any party to the

suit or proceeding so as to affect the rights of any other

party thereto under any decree or order which may be

made therein, except under the authority of the court and

on such terms as it may impose." x x x x x x 

T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 571

[R.V. RAVEENDRAN, J.]

In Jayaram Mudaliar v. Ayyaswami (AIR 1973 SC 569) this A

court held that the purpose of Section 52 of the Act is not to

defeat any just and equitable claim, but only to subject them

to the authority of the court which is dealing with the property

to which claims are put forward. This court in Hardev Singh

v. Gurmail Singh (2007) 2 SCC 404 held that Section 52 of B

the Act does not declare a pendente lite transfer by a party

to the suit as void or illegal, but only makes the pendente lite

purchaser bound by the decision in the pending litigation.

10. The principle underlying Section· 52 is clear. If during C

the pendency of any suit in a court of competent jurisdiction

which is not collusive, in which any right of an immovable

property is directly and specifically in question, such property

cannot be transferred by any party to the suit so as to affect

the rights of any other party to the suit under any decree that

may be made in such suit. If ultimately the title of the pendente D

lite transferor is upheld in regard to the transferred property,

the transferee's title will not be affected. On the other hand,

if the title of the pendente lite transferor is recognized or

accepted only in regard to a part of the transferred property,

then the transferee's title will be saved only in regard to that E

extent and the transfer in regard to the remaining portion of

the transferred property to which the transferor is found not

entitled, will be invalid and the transferee will not get any

right, title or interest in that portion. If the property transferred

pendente lite, is allotted in entirely to some other party or F

parties or if the transferor is held to have no right or title in

that property, the transferee will not have any title to the

property. Where a co-owner alienates a property or a portion

of a property representing to be the absolute owner, equities

can no doubt be adjusted while making the division during G

the final decree proceedings, if feasible and practical (that is

without causing loss or hardship or inconvenience to other

parties) by allotting the property or portion of the property

transferred pendente lite, to the share of the transferor, so

H 

572 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R. .

A that the bonafide transferee's right and title are saved fully or

partially.

11. In this case, a suit for partition filed by the first

respondent against the second respondent in the year 1985

8 which included the suit property, was pending in a court of

competent jurisdiction as on the date of sale (11.4.1990) by

the second respondent in favour of the appellant. The partition

suit was not collusive. Having regard to Section 52 of the

Act, the sale by the second respondent in favour of the

C appellant did not in any way affect the right of the first

respondent (plaintiff in the partition suit) or the decree made

in her favour in the said partition suit. It is thus evident that

the sale by second respondent in favour of the appellant

though not void, did not bind the first respondent who was

the plaintiff in the partition suit. On the other hand, the sale

D in favour of appellant was subject to the right declared or

recognized in favour of the first respondent-plaintiff under the

decree passed in the pending partition suit. The sale pendente

lite would therefore be subject to the decree in the partition

suit. In the final decree passed in the partition suit, the major

E portion of the suit property shown by the letters B, C, D, E,

F, G, H, I, B in the Commissioner's sketch (Ex.C-5) was

allotted to the share of the first respondent and to that extent,

the sale in favour of the appellant would be ineffective. But in

regard to the remaining portion of the suit property namely

F the portion shown by the letters A, B, I, H, A in the

Commissioner's sketch (Ex.C-5) which stood allotted to the

share of the second respondent in the final decree in the

partition suit, the sale by the second respondent in favour of

the appellant is effective, valid and binding on the second

G respondent and to that extent, ·the appellant is entitled to a

declaration of title and consequential injunction. . .

12. We are therefore of the view that the suit ought not

to have been dismissed in entirety even if the sale by the

H second respondent in favour of appellant on 11.4.1990 was 

T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 573

[R.V. RAVEENDRAN, J.]

hit by the doctrine of /is pendens. The second respondent A

cannot avoid the sale made by her on the ground that she

was held to be not the exclusive owner, in the pending partition

suit. Therefore the courts below ought to have decreed the

appellant's suit in part, in regard to the portion of the suit

property that fell to the share of second respondent instead B

of dismissing the suit.

A related suggestion to the Law makers

13. It is necessary to refer to the hardship, loss, anxiety

and unnecessary litigation caused on account of absence of C

_a mechanism for prospective purchasers to verify whether a

'property is subject to any pending suit or a decree or

attachment. At present, a prospective purchaser can easily

find out about any existing encumbrance over a property either

by inspection of the Registration Registers or by securing a D

certificate relating to encumbrances (that is copies of entries

in the Registration Registers) from the jurisdictional SubRegistrar under Section 57 of the Registration Act, 1908.

But a prospective purchaser has no way of ascertaining

whether there is any suit or proceeding pending in respect of E

the property, if the person offering the property for sale does

not disclose it or deliberately suppresses the information. As

a result, after parting with the consideration (which is many .

a time the life time savings), the purchaser gets a shock of

his life when he comes to know that the property purchased

by him is subject to litigation, and that it may drag on for

decades and ultimately deny him title to the property. The

pendente lite purchaser will have to wait for the litigation to

come to an end or he may have to take over the responsibility

F

of conducting the litigation if the transferor loses interest after G

the sale. The purchaser may also face objections to his being

impleaded as a party to the pending litigation on the ground

that being a /is pendens purchaser, he is not a necessary

party. All these inconveniences, risks, hardships· and misery

could be avoided and the property litigations could be reduced H 

574 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A to a considerable extent, if there is some satisfactory and

reliable method by which a prospective purchaser can

ascertain whether any suit is pending (or whether the property

is subject to any decree or attachment) before he decides to

purchase the property.

8 14. It is of some interest that a solution has been found

to this problem in the States of Maharashtra by an

appropriate local amendment to section 52 of the Act, by

Bombay Act 4 of 1939. Section 52, as applicable in the

Maharashtra ·and Gujarat, reads thus (the amendment is

C shown in italics):

D

E

F

"52. (1) During the pendency in any court having authority

within the limits of India excluding the State of Jammu

and Kashmir established beyond such limits by the

Central Government, of any suit or proceeding which is

not collusive and in which any right to immoveable

property is directly and specifically in question, if a notice

of the pendency of such suit or proceeding is registered

under section 18 of the Indian Registration Act, 1908,

the property after the notice is so registered cannot be

transferred or otherwise dealt with by any party to the

suit or proceeding so as to affect the rights of any other

party thereto under any decree or order which may be

made therein, except under the authority of the court

and on such terms as it may impose.

(2) Every notice of pendency of a suit or proceeding

referred to in sub-section (1) shall contain the following

particulars, namely:-

G (a) the name and address of the owner of immoveable

property or other person whose right to the immoveable

property in question;

(b) the description of the immoveable property the right

to which is in question; 

T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 575

[R.V. RAVEENDRAN, J.]

(c) the court in which the suit or proceeding is pending; A

(d) the nature and title of the suit or proceeding; and

(e) the date on which the suit or proceeding was

instituted.

xxxxxxxxxxxx

B

We hope that the Law Commission and the Parliament

considers such amendment or other suitable amendment to

cover the existing void in title verification or due diligence C

procedures. Provision can also be made for compulsory

registration of such notices in respect of decrees and in

regard to attachments of immoveable properties.

15. We may also refer to another related area where

registration should be made compulsory to reduce property D

litigation. At present in most of the states, agreements to sell

are not compulsorily registrable as they do not involve transfer

of any right, title or interest in an immoveable property.

Unscrupulous property owners enter into agreements of sale

and take huge earnest money deposits/advances, and then E

sell the property to others thereby plunging the original

agreement holder and the subsequent purchaser into litigation.

Registration of agreements of sale will reduce such litigation.

It will also assist in putting an end to the prevalent practice

of entering into agreements of sale showing the real F

consideration and then registering the sale deed for only a

part of the real consideration. If all agreements of sale are

compulsorily registered, that will go a long way to discourage

generation and circulation of black money in real estate

matters, as also undervaluation of documents for purposes G

of stamp duty. It will also discourage the growth of land mafia

and muscleman who dominate the real estate scene in various

parts of the country. Prevention of a malaise, is always better

than allowing a malaise to develop and then trying to cure it.

Be that as it may. H 

576 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A Conclusion

16. We accordingly allow this appeal in part and set

aside that part of the judgment of the High Court holding that

the appellant-plaintiff is not entitled to any relief. Instead, the

8 suit is decreed in part and declaration of title with

consequential permanent injunction as prayed is granted in·

regard to that portion of the suit property that was allotted to

the second respondent in the partition suit, that is portion

shown as A, B, I, H, A in Ex.C-5 (Commissioner's sketch) in

O.S.No.8/1985. Parties to bear their respective costs.

c

D.G. Appeal partly allowed. 

Code of Civil Procedure, 1908 - Order XVI, Rules 1 and 2 r/w s.151 - Partition suit - Defendants filed application for permission to file a list of witnesses, which included the name of the plaintiff's Advocate - Trial Court granted the defendants the leave to file the list of witnesses but rejected their prayer for permission to cite the plaintiff's advocate as a witness on ground that no reason therefor was assigned in the application - Justification of- Held: Justified - If the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together- Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate - Therefore, it would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness - In the instant case, the concerned advocate was engaged by the plaintiffs almost 11 years prior to the filing of application by the defendants - During this long interregnum, the defendants never objected to the appearance of the plaintiff's advocate by pointing out that he was interested in the subject matter of the suit - The prayer made by the defendants for being allowed to cite the plaintiff's advocate as a witness was not only - SUPREME COURT REPORTS [2011] 4 S.C.R.417 H • A misconceived but also mischievous ex-facie with an oblique motive of boarding him out of the case.

•

[2011] 4 S.C.R. 417

KOKKANDA B. POONDACHA AND OTHERS A

v.

K.D. GANAPATHI AND ANR.

(Civil Appeal No. 2015 of 2011)

FEBRUARY 22, 2011

[G.5. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

Code of Civil Procedure, 1908 - Order XVI, Rules 1 and

B

2 r/w s.151 - Partition suit - Defendants filed application for

permission to file a list of witnesses, which included the name C

of the plaintiff's Advocate - Tdal Court granted the defendants

the leave to file the list of witnesses but rejected their prayer

for permission to cite the plaintiff's advocate as a witness on

ground that no reason therefor was assigned in the application

- Justification of- Held: Justified - If the parties to the litigation D

are allowed to file list of witnesses without indicating the

purpose for summoning the particular person(s) as

witness(es), the unscrupulous litigants may create a situation

where the cases may be prolonged for years together- Such

litigants may include the name of the advocate representing E

the other side as a witness and if the Court casually accepts

the list of witnesses, the other side will be deprived of the

services of the advocate - Therefore, it would be a prudent

exercise of discretion by the Court to insist that the party filing

the list of witnesses should briefly indicate the purpose of F

summoning the particular person as a witness - In the instant

case, the concerned advocate was engaged by the plaintiffs

almost 11 years prior to the filing of application by the

defendants - During this long interregnum, the defendants

never objected to the appearance of the plaintiff's advocate G

by pointing out that he was interested in the subject matter of

the suit - The prayer made by the defendants for being

allowed to cite the plaintiff's advocate as a witness was not only

417 H 

418 SUPREME COURT REPORTS [2011] 4 S.C.R. •

A misconceived but also mischievous ex-facie with an oblique

motive of boarding him out of the case.

Constitution of India, 1950...:. Articles 226 and 227 -

Interlocutory order passed by Subordinate Court - Challenge

8 to - Exercise of powers under Arts. 226 and 227 - Scope -

Held: In the instant case, the High Court totally ignored the

principles and parameters laid down by this Court for exercise

of power u/Articles 226 and 227 of the Constitution qua an

interlocutory order passed by the Subordinate Court and set

C aside the order of the trial Court without assigning any tangible

reason.

Advocates - Relationship between lawyer and his client

- Duty imposed upon an Advocate - Discusseq -c Held: An

Advocate cannot ordinarily withdraw from engagement without·

D sufficient cause aod without giving reasonable and sufficient

notice to the client- If an Advocate has reason to believe that

he will be a witness in the case, he should not accept a brief

or appear in the case - Principles of 'uberrima fides' - Bar

Council of India Rules, 1975 - Rules 12, 13, 14 and 15 of

E Section II, Chapter II of Part IV. -

Appellant Nos.1 to 3 and one other person filed suit

for partition and separate possession of 1/Gth share each

in the suit property and also for grant of a declaration that

sale deed dated 10.7.1997 executed by appellant Nos.4

F to 6 was not binding on them. Respondent Nos.1 and 2

filed written statement, and subsequently, also filed an

application under Order XVI Rule 1(1) and (2) read with

Section 151 C.P.C. supported by an affidavit of

respondent No.1 for permission to file the list of ~

~ witnesses, which Included the name of 'NRK', the

Advocate who had been representing the appellants in

the suit from the very beginning.

The trial Court partly allowed the application of 

• KOKKANDA B. POONDACHA AND ORS. v. K.D. 419

GANAPATHI AND ANR.

respondent Nos.1 and 2 and granted them leave to file A

the list of witnesses but rejected their prayer for

permission to cite 'NRK' as a witness on ground that no

reason therefor was assigned in the application. The

respondents challenged the order of the trial Court by

filing a petition under Articles 226 and 227 of the B

Constitution insofar as their prayer for citing 'NRK' as a

witness was rejected. The High Court allowed the petition

and set aside the order of the trial Court holding that

reasons were not required to be assigned to justify the

summoning of a particular person as a witness. c

In the instant appeal, the questions arising for

consideration were: 1) whether the High Court committed

serious error by interfering with the order of the trial Court

without recording a finding that the said order was

vitiated due to want of jurisdiction or any patent legal D

infirmity in exercise of jurisdiction; and 2) whether a

litigant filing the list of witnesses is bound to indicate,

howsoever briefly, the relevance of the witness to the

subject matter of the suit etc., and, in any case, one party

to the proceedings cannot cite the advocate representing E

the other side as a witness and thereby deprive the latter

of the services of the advocate without disclosing as to

how his testimony is relevant to the issues arising in the

case.

Allowing the appeal, the Court

F

HELD:1. The High Court totally ignored the

principles and parameters laid down by this Court for

exercise of power under Articles 226 and 227 of the

Constitution qua an interlocutory order passed by the G

Subordinate Court and set aside the order of the trial

Court without assigning any tangible reason. [Para 10]

[427-H; 428-A-B]

Surya Dev Rai v. Ram Chander Rai and others (2003) H 

420 SUPREME COURT REFl>ORTS

•

[2011] 4 S.C.R.

A 6 SCC 675 and Shalini Shyam :Sheffy v. Rajendra Shankar

Patil (2010) 8 SCC 329 - reliecf on.

2.1. The relationship between a lawyer and his client

is solely founded on trust and confidence. A lawyer

8 cannot pass on the confiden~ial information to anyone

else. This is so because he 's a fiduciary of his client,

who reposes trust and cqnfidence in the lawyer.

Therefore, he has a duty tQ fulfill all his obligations

towards his client with care ~nd act in good faith. Since

C the client entrusts the whole obligation of handling legal

proceedings to an advocate, he has to act according to

the principles of uberrima fide$, i.e., the utmost good faith,

integrity, fairness and loyaltyl [Para 12] [428-F-G]

2.2. The duties of an advQcate to the Court, the client,

D opponent and colleagues arei enumerated in Chapter II of

Part IV of the Bar Council ot:lndia Rules, 1975. Rules 12,

13, 14 and 15 of Section II, ,Chapter II of Part IV of the

Rules, regulate the duty of ~n advocate to the client. An

analysis of the above Rules show that one of the most

E important duty imposed upc>n an advocate is to uphold

the interest of the client, fearlessly by all fair and

honourable means. An advocate cannot ordinarily

withdraw from engagement :without sufficient cause and

without giving reasonable and sufficient notice to the

F client. If he has reason to believe that he will be a witness

in the case, the advocate $hould not accept a brief or

appear in the case. [Paras 1$, 14] [428-H; 429-A-B; H; 430-

A]

2.3. If the prayer made by the respondents for being

G allowed to cite 'NRK' as a witness is critically scrutinized

in the backdrop of the duti~s of an advocate towards his

client, it is clear that the same was not only misconceived

but was mischievous ex-facie. Neither in the written

statement nor the additiot;ial written statement filed by

H them before the trial Court, the respondents hadl 

• KOKKANDA' B. POON DACHA AND ORS. v. K.D. 421

GANAPATHI AND ANR.

attributed any role to 'NRK' in relation to the subject A

matter of the suit. The concerned advocate was engager'.

by the plaintiffs-appellants in 1996 i.e. almost 11 years

prior to the filing of application by the respondents under

Order XVI Rule 1(1) and (2) read with Section 151 CPC.

During this long interregnum, the respondents never B

objected to the appearance of 'NRK' as an advocate of

the appellants by pointing out that he was interested in

the subject matter of the suit. Notwithstanding this, the

respondents cited him as a witness in the list filed along

with the application. The sole purpose of doing this was c

to create a situ~tion in which the advocate would have

been forced to withdraw from the case. Luckily for the

appellants, the trial Court could see the game plan of the

respondents and frustrated their design by partly

dismissing the application. The Single Judge of the High 0 Court ignored that the respondents had included the

name of 'NRK' in the list of witnesses proposed to be

summoned by them with an oblique motive of boarding

him out of the case and passed the impugned order by

recording one line observation that the respondents were E

not required to give reasons for summoning the

particular person as a witness. [Para 15] [430-G-H; 431-

A·D]

2.4. If the parties to the litigation are allowed to file

list of witnesses without indicating the purpose for F

summoning the particular person(s) as witness(es), the

unscrupulous litigants may create a situation where the

cases may be prolonged for years together. Such

litigants may include the name of the advocate

representing the other side as a witness and if the Court G

casually accepts the list of witnesses, the other side will

be deprived of the services of the advocate. Therefore, it

would be a prudent exercise of discretion by the Court

to insist that the party filing the list of witnesses should

briefly indicate the purpose of summoning the particular H 

422 SUPREME COURT REPORTS • [2011] 4 S.C.R.

A person as a witness. The iml)ugned order of the High

Court is set aside and the one: passed by the trial Court

is restored. The respondents s~all pay cost of Rs.50,000/

• to the appellants. [Para 16) [431-E-H]

B Mange Ram v. Brij Mohan ~1983) 4 SCC 36 and V. C.

Rangadurai v. D. Gopa/an (1979,) 1 SCC 308 - relied on.

Case Law ,Reference:

(201 O) 8 sec 329 relied on Para 6, 9

c (1983) 4 sec 36 relied on Para 6, 11

(2003) 6 sec 675 relied on Para 7, 8

(1979) 1 sec 308 relied on Para 14

o CIVIL APPELLLATE JURl$DICTION : Civil Appeal No.

2015 of 2011.

From the Judgment & Ord~r dated 24.2.2010 of the High

Court of Karnataka at Bangalore !n W.P. No. 2610 of 2007 (GME CPC).

F

Krian Suri for the Appellants.

S.N. Bhat for the Respondents.

The following Judgment o~ the Court was delivered

JUDGMENT

Leave granted.

2. Whether the respondents (defendant Nos.5 and 6 in the

G suit filed by the appellants), could cite the advocate

representing the appellants asi a witness in the list filed under

Order XVI Rule 1 (1) and (2) read with Section 151 of the Code

of Civil Procedure (CPC) without giving an iota of indication

about the purpose of summoning him in future is the question

H 

• KOKKANDA B. POONDACHA AND ORS. v. K.D. 423

GANAPATHI AND ANR.

which arises for consideration in this appeal filed against order A

dated 24.02.2010 passed by the learned Single Judge of the

Karnataka High Court whereby he set aside the order passed

by the trial Court partly dismissing the application of the

respondents.

3. Appellant Nos.1 to 3 and one Parvathy filed suit, which

came to be registered as O.S. No.75 of 1996, for partition and

separate possession of 1/6th share each in the suit property

and also for grant of a declaration that sale deed dated

B

10. 7 .1997 executed by defendant Nos.2 to 4, who were, later

on, transposed as plaintiff Nos.5 to 7 (appellant Nos.4 to 6 C

herein), was not binding on them. Defendant Nos.5 to 7

(including respondent Nos.1 and 2 herein) filed written

statement on 19.2.1998. Respondent Nos.1 and 2 filed

additional written statement on 9.8.2002. After two years and

seven months, they filed an application dated 11.3.2005 under D

Order XVI Rule 1 (1) and (2) read with Section 151 C.P.C.

supported by an affidavit of respondent No.1 for permission to

file the list of witnesses, which included the name of Shri N.

Ravindranath Karnath, Advocate, who was representing th.e

appellants in the suit from the very beginning.

4. The trial Court partly allowed the application of

respondent Nos.1 and 2 and granted leave to them to file the

E

list of witnesses but rejected their prayer for permission to cite

Shri N. Ravindranath Karnath as witness No.1. The reasons F

assigned by the trial Court for partially declining the prayer of

respondent Nos; 1 and 2 are extracted below:

" ...................... While citing advocate of the opposite party

as a witness, the defendants 3 and 4 ought to have given

reason for what purpose they are citing him as a witness G

and examining him in their favour. Once the advocate for

the opposite party is cited as a witness in the list, the

opposite party losses precious service of his advocate. In

that circumstances, the party will suffer. Under the

circumstances, so as to know for what purpose the H 

A

B

c

D

E

F

424 SUPREME COURT REPORTS [2011] 4 S.C.R. •

defendant ,110.2 and 3 are citing and examining the N.R.

Karnath advocate for the plaintiff in their favour have to

assign reason. The Court has to very cautious and careful

while considering such an aspect of the matter of

examining and citing the advocate foF the opposite party

in their favour. The Court has to determine as to whether

the evidence of said advocate is material for the decision

of the case or not? Unless defendant no.2 and 3 assigned

reason in the application or in the affidavit as to why they

are citing the advocate for the opposite party and

examining in their favour, the application filed by defendant

no.2 and 3 is not maintainable and the said application is

not sustainable under law. In the above said Judgment, in

para 2, it is clearly held that, "but qppellants then filed a

petition seeking permission to cite the advocate of the

respondents as a witness". But herein this case, the

defendant no.2 and 3 are not seeking permission to cite

the advocate for the plaintiff as a withess. Defendant no.2

and 3 not only have to seek permissic:,m of this Court to cite

the advocate for the Plaintiff as a witness, but also he has

to give good reasons for what purpose he is citing him as

a witness and examining in his favour. Without assigning

any reasons and without seeking permission to cite the

advocate for the Plaintiff as a witne:;;s in the witness list,

application to that extent is not tenable and same is liable

to be dismissed to that extent."

5. The respondents challenged the o:rder of the trial Court

by filing a petition under Articles 226 and 227 of the

Constitution insofar as their prayer for citing Shri N.

Ravindranath Karnath as a witness was t~jected. The learned

G Single Judge allowed the petition and set aside the order of

the trial Court by simply observing that reasons are not required

to be assigned to justify the summoning ~fa particular person

as a witness.

H 6. Mrs. Kiran Suri, learned counsel fof the appellants relied

upon the judgment of this Court in Shallni Shyam Shetty vs. 

• KOKKANDA B. POONDACHA AND ORS. v. K.D. 425

GANAPATHI AND ANR.

Rajendra Shankar Patil (2010) 8 SCC 329 and argued that A

the order under challenge is liable to be set aside because the

High Court committed serious error by interfering with the order

of the trial Court without recording a finding that the said orde.r

is vitiated due to want of jurisdiction or any patent legal infirmity

in the exercise of jurisdiction and that refusal of the trial Court B

to permit the respondents to cite Shri N. Ravindranath Karnath

as a witness had prejudiced their cause. She further argued

that the respondents are not entitled to cite and summon as a

witness the advocate representing the appellants because in

the application filed by them, no justification was offered for· c

doing so. In support of this argument, Mrs. Suri relied upon the

judgment of this Court in Maqge Ram vs. Brij Mohan (1983)

4 sec 36. ·

7. Shri S.N. Bhatt, learned counsel for the respondents

argued that even though his clients had filed application D

belatedly, the trial Court was not justified in declining their

prayer for citing Shri N. Ravindranath Karnath as a witness

merely because he was representing the appellants. Learned

counsel submitted that at the stage of filing the list of witnesses,

the plaintiffs or for that reason the defendants are not required E

to disclose the nature of the evidence to be given by the

particular witness or its relevance to the subject matter of the

suit etc. and the trial Court had grossly erred in not granting

leave to the respondents to cite Shri N. Ravindranath Karnath

as one of their witnesses. Shri Bhatt relied upon the judgment F

in Surya Dev Rai v. Ram Chander Rai and others (2003) 6

sec 675 and argued that even after amendment of Section

115, C.P.C., the High Court can, in exercise of supervisory

power under Article 227, correct the error of jurisdiction

committed by the Subordinate Court. G

8. We have considered the respective submissions. We.

shall first consider the question whether the High Coort could

interfere with the order of the trial Court without considering the

question whether the said order was vitiated due to wan".·of H 

426 SUPREME COURT REPORTS [2011] 4 S.C.R.

A jurisdiction or the trial Court had exceeded its jurisdiction in

deciding the application of the respondents and the order

passed by :ithas resulted in fail.ire ofj.lsti;:e. Jh Surya Dev Rai's

case (supra), the two Judge Bench, after detailed analysis of

the various precedents on the scope of th~ High Court's powers

B under Articles 226 and 227 of the Constitution culled out nine

c

Q

E

F

G

H

propos(tions including the following:-

"(2) Interlocutory orders, passed by the courts subordinate

to the High Court, against which remedy of revision has

been excluded by CPC Amendment Act 46 of 1999 are

nevertheless open to challenge in,, and continue to be

subject to, certiorari and supervisory jurisdiction of the High

Court.

(3) Certiorari, under Article 226 of the Constitution, is

issued for correcting gross errors of jurisdiction i.e. when

a subordinate court is found to have acted (i) without

jurisdiction - by assuming jurisdictiorn where there exists

none, or (ii) in excess of its jurisdiction - by overstepping

or crossing the limits of jurisdiction, or (iii) acting in flagrant

disregard of law or the rules of proi;edure or acting in

violation of principles of natural justice where there is no

procedure specified, and thereby occasioning failure of

justice.

(4) Supervisory jurisdiction under Article 227 of the

Constitution is exercised for keeping the subordinate

courts within the bounds of their jurit;diction. When the

subordinate Court has assumed a juris~iction which it does

not have or has failed to exercise a jurisdiction which it

does have or the jurisdiction though available is being

exercised by the Court in a manner n(:>t permitted by law

and failure of justice or grave injusti¢e has occasioned

thereby, the High Court may step in to exercise its

supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory 

• KOKKANDA B. POONDACHA AND ORS. v. K.D. 427

GANAPATHI AND ANR.

jurisdiction, none is available to correct mere errors of fact A

or of law unless the following requirements are satisfied:

(I) the error is manifest and apparent on the face of the

proceedings such as when it is based on clear ignorance

or utter disregard of the provisions of law, and (ii) a grave

injustice or gross failure of justice has occasioned B

thereby."

9. In Shalini Shyam Shetty vs. Rajendra Shankar Patil

(supra), the Court again examined the scope of the High Court's

power under Article 227 of the Constitution and laid down the C

following proposition:

"Article 227 can be invoked by the High Court suo motu

as a custodian of justice. An improper and a frequent

exercise of this power will be counterproductive and will

divest this extraordinary power of its strength and vitality. D

The power is discretionary and has to be exercised very

sparingly on equitable principle. This reserve and

exceptional power of judicial intervention is not to be

exercised just for grant of relief in individual cases but

should be directed for promotion of public confidence in E

the administration in the larger public interest whereas

Article 226 is meant for protection of individual grievances.

Therefore, the power under Article 227 may be unfettered

but its exercise is subject to high degree of judicial

discipline. The object of superintendence under Article F

227, both administrative and judicial, is to maintain

efficiency, smooth and orderly functioning of the entire

machinery of justice in such a way as it does not bring it

into any disrepute. The power of interference under Article

227 is to be kept to the minimum to ensure that the wheel G

of justice does not come to a halt and the fountain of justice

remains pure and unpolluted in order to maintain public

confidence in the functioning of the tribunals and courts

subordinate to the High Court."

10. The learned Single Judge of the High Court totally H 

428 SUPREME COURT REPORTS

e

[2011] 4 S.C.R.

A ignored the principles and parameters laid down by this Court

for exercise of power under Articles 226 and 227 of the

Constitution qua an interlocutory order passed by the

Subordinate Court and set aside the otder of the trial Court

without assigning any tangible reason.

B 11. The next question which needs consideration is

whether a litigant filing the list of witnesses is bound to indicate,

howsoever briefly, the relevance of the witness to the subject

matter of the suit etc., and, in any case, one party to the

proceedings cannot cite the advocate representing the other

C side as a witness and thereby deprive th~ latter of the services

of the advocate without disclosing as to how his testimony is

relevant to the issues arising in the case. In Mange Ram vs.

Brij Mohan (supra), this Court interpreted Order XVI Rule 1

(1),(2) and (3) CPC and observed:

D

"If the requirements of these provisions are conjointly read

and properly analysed, it clearly transpires that the

obligation to supply the list as we'I as the gist of the

evidence of each witness whose natne is entered in the

E list has to be carried out in respect of those witnesses for

procuring whose attendance th$ party needs the

assistance of the court."

12. At this stage, we may also advert to the nature of

relationship between a lawyer ang his client, which is solely

F founded on trust and confidence. A lawyet cannot pass on the

confidential information to anyone else. This is so because he

is a fiduc:iary of his client, who reposes trust and confidence in

the lawyer. Therefore, he has a duty to fulfill all his obligations

towards his client with care and act in g¢>od faith. Since the

G client entrusts the whole obligation of handling legal

proceedings to an advocate, he has to act according to the

principles of uberrima fides, i.e., the utmost good faith, integrity,

fairness and loyalty.

H 13. The duties of an advocate to the Court, the client, 

• KOKKANDA B. POONDACHA AND ORS. v. K.D. 429

GANAPATHI AND ANR.

opponent and colleagues are enumerated in Chapter II of Part A

l,V of the ~'ar Council of India .Rules, 1975 (for short, "the

Rules"). Ruies 12, 13, 14 and 15 of Section II, Chapter II of Part

IV of the Rules, which regulate the duty of an advocate to the

client, read as under:

"12. An advocate shall not ordinarily withdraw from

engagements, once accepted, without sufficient cause

and unless reasonable and sufficient notice is given to the

client. Upon his withdrawal from a case, he shall refund

such part of the fee as has not been earned.

13. An advocate should not accept a brief or appear in a

case in which he has reason to believe that he will be a

witness, and if being engaged in a case, it becomes

apparent that he is a witness on a material question of fact,

B·

c

he should not continue to appear as an advocate if he can o

retire without jeopardising his client's interests.

14. An advocate shall, at the commencement of his

engagement and during the continuance thereof, make all

such full and frank disclosures to his client relating to his

connection with the parties and any interest in or about the E

controversy as are likely to affect his client's judgment in

either engaging him or continuing the engagement.

15. It shall be the duty of an advocate fearlessly to uphold

the interests of-his client by all fair and honourable means F

without regard to any unpleasant consequences to himself

or any other. He shall defend a person accused of a crime .

regardless of his personal opinion as to the guilt of the

accused, bearing in mind that his loyalty is to the law which

requires that no man should be convicted without adequate G

evidence."

14. An analysis of the above reproduced Rules show that

one of the most important duty imposed upon an advocate is

to uphold the interest of the client fearlessly by all fair and

honourable means. An advocate cannot ordinarily withdraw H 

430 SUPREME COURT REPORTS [2011) 4 S.C.R.

A from enga!1ement witho.ut sufficient ca4se and without giving

reasonable ·and sufficient notice to the Cllient. If he has reason

to believe th'at he will be a witness in the case, the advocate

should not accept a brief or appear in the case. In V. C.

Rangadurai v. D. Gopahm (1979) 1 $CC 308, A.P.Sen, J.

B outlined the importance of the relationship of an advocate with

c

D

E

F

his client in the following words:

"Nothing should be done by any member of the legal

fraternity which might tend to les~en in any degree the

confidence of the public in the fidelity, honesty and integrity

of the profession. Lord Brougham, then aged eighty-six,

said in a speech, in 1864, that the first great quality of an

advocate was 'to reckon everything subordinate to the

interests of his client'. What he said in 1864 about 'the

paramountcy of the client's intere~t', is equally true today.

The relation between a lawyer and his client is highly

fiduciary in its nature and of a ver'), delicate, exacting, and

confidential character requiring a high degree of fidelity

and good faith. It is purely a perso~al relationship, involving

the highest personal trust and confidence which cannot be

delegated without consent. A lawyer when entrusted with

a brief, is expected to follow the norms of professional

ethics and try to protect the int$rests of his clients, in

relation to whom he occupies a position of trust. The

appellant completely betrayed the trust reposed in him by

the complainants."

15. If the prayer made by the respondents for being

allowed to cite Shri N. Ravindranath Karnath as a witness is

critically scrutinised in the backdr(>p of the above noted

statement on the duties of an advocate towards his client, we

G have no hesitation to hold that the same was not only

misconceived but was mischievous ex-facie. Neither in the

written statement nor the additional written statement filed by

them before the trial Court, the respondents had attributed any

role to Shri N. Ravindranath Karnath in relation to the subject

H matter of the suit. The concerned aqvocate was engaged by

• 

• KOKKANDA B. POONDACHA AND ORS. v. K.D. 431

GANAPATHI AND ANR.

the plaintiffs-appellants in 1996 i.e. ·almost 11 years prior to the A

filing of application by the respondents under Order XVI Rule

1(1) and (2) read with Section 151 CPC. During this long

interregnum, the respondents never objected to the appearance

of Shri N. Ravindranath Karnath as an advocate of the

appellants by pointing out that he was interested in the subject B

matter of the suit. Notwithstanding this, the respondents cited

him as a witness in the list filed along with the application. The

sole purpose of doing this was to create a situation in which

the advocate would have been forced to withdraw from the

case. Luckily for the appellants, the trial Court could see the c

game plan of the respondents and frustrated their design by

partly dismissing the application. The learned Single Judge

ignored that the respondents had included the name of Shri N.

Ravindranath Karnath in the list of witnesses proposed to be

summoned by them with an oblique motive of boarding him out 0 of the case and passed the impugned order by recording one

line observation that the respondents were not required to give

reasons for summoning the particular person as a witness.

16. We may add that if the parties to the litigation are

allowed to file list of witnesses without indicating the purpose E

for summoning the particular person(s) as witness(es), the

unscrupulous litigants may create a situation where the cases

may be prolonged for years together. Such litigants may include

~he name of the advocate representing the other side as a

witness and if _the Court casually accepts the list of witnesses,

the ottier side will be deprived of the services of the advocate.

Therefore, it would Pe a prudent exercise of discretion by the

Court to insists.that the party filing the list of witnesses should

briefly indicate..the purpose of summoning the particular person

as a witness.

• •

17: in· the-·result. the appeal is allowed, the impugned order

• is oet aside and the ol're passed by the trial Court is restored.

The respondE!nts shall pay cost of Rs.5Q,OOO/- to the _appellants.

F

G

B.B.~. Appeal allowed. H 

Penal Code, 1860 – ss. 302/34, s. 304 Part II – Murder with common intention – Culpable homicide not amounting to murder, when – Political animosity between two groups led to the murder of the deceased – Prosecution witnesses corroborating incident of accused A 1 stopping an auto, dragging the deceased to the house of A-4, and the other accused-A2, A4 joined A-1 and assaulted the deceased with various weapons, whereas, A-3 used a stone to assault the deceased – Conviction u/ss. 302/34 and sentence for life imposed by the courts below – Correctness: Held: As regards A1, A2 and A4, the decision of the trial court and the High Court is concurred with – Their analyses and conclusions are based on correct appreciation of evidence and law – However, as regards, the culpability of A-3 for murder, testimonies of four eye-witnesses state that the A-3 had used a stone to hit the deceased’s head, he never took axe in his hands – Perusal of the evidence would reveal that it is not the case of the prosecution that A-3 was along with the other accused while the deceased was dragged to the house – After the other accused assaulted the deceased with sword, A-3 came thereafter and assaulted the deceased with stone lying there – Evidence insufficient to deduce a conclusion that A-3 shared the common intention with the other accused to cause the murder of the deceased – In fact, both the courts mechanically drew an inference against A3 u/s. 34 merely 2 [2024] 2 S.C.R. Digital Supreme Court Reports based on his presence near the scene of offence and his familial relations with the other accused – Even though, A-3 might not have had the common intention to commit the murder, nevertheless, his participation in the assault and the wielding of the stone certainly makes him culpable for the offence that he has committed – A-3 should have had the knowledge that the use of a stone to hit the head of the deceased is likely to cause death – Thus, he is held guilty of the offence u/s. 304 Part II – Conviction and sentence of A-1, A-2 and A-4 u/s. 302/34 is upheld, however, the conviction of A-3 is modified to s. 304 Part II and sentenced to 10 years imprisonment. [Paras 17, 23, 28, 30, 31, 32]

* Author

[2024] 2 S.C.R. 1 : 2024 INSC 87

Velthepu Srinivas and Others

v.

State of Andhra Pradesh (Now State of Telangana) and Anr.

(Criminal Appeal No. 2852 of 2023)

06 February 2024

[B.R. Gavai and Pamidighantam Sri Narasimha,* JJ.]

Issue for Consideration

The courts below, if justified in convicting the four accused u/ss.

302/34 IPC and imposing sentence for life for committing murder

of the victim.

Headnotes

Penal Code, 1860 – ss. 302/34, s. 304 Part II – Murder with

common intention – Culpable homicide not amounting to

murder, when – Political animosity between two groups

led to the murder of the deceased – Prosecution witnesses

corroborating incident of accused A 1 stopping an auto,

dragging the deceased to the house of A-4, and the other

accused-A2, A4 joined A-1 and assaulted the deceased with

various weapons, whereas, A-3 used a stone to assault the

deceased – Conviction u/ss. 302/34 and sentence for life

imposed by the courts below – Correctness:

Held: As regards A1, A2 and A4, the decision of the trial court and

the High Court is concurred with – Their analyses and conclusions

are based on correct appreciation of evidence and law – However,

as regards, the culpability of A-3 for murder, testimonies of four

eye-witnesses state that the A-3 had used a stone to hit the

deceased’s head, he never took axe in his hands – Perusal of the

evidence would reveal that it is not the case of the prosecution

that A-3 was along with the other accused while the deceased

was dragged to the house – After the other accused assaulted

the deceased with sword, A-3 came thereafter and assaulted the

deceased with stone lying there – Evidence insufficient to deduce

a conclusion that A-3 shared the common intention with the other

accused to cause the murder of the deceased – In fact, both the

courts mechanically drew an inference against A3 u/s. 34 merely 

2 [2024] 2 S.C.R.

Digital Supreme Court Reports

based on his presence near the scene of offence and his familial

relations with the other accused – Even though, A-3 might not have

had the common intention to commit the murder, nevertheless, his

participation in the assault and the wielding of the stone certainly

makes him culpable for the offence that he has committed – A-3

should have had the knowledge that the use of a stone to hit the

head of the deceased is likely to cause death – Thus, he is held

guilty of the offence u/s. 304 Part II – Conviction and sentence of

A-1, A-2 and A-4 u/s. 302/34 is upheld, however, the conviction

of A-3 is modified to s. 304 Part II and sentenced to 10 years

imprisonment. [Paras 17, 23, 28, 30, 31, 32]

Case Law Cited

Camilo Vaz v. State of Goa, [2000] 2 SCR 1088 : (2000)

9 SCC 1; Bawa Singh v. State of Punjab 1993 Supp

(2) SCC 754; Sarup Singh v. State of Haryana (2009)

16 SCC 479; Ghana Pradhan & Ors. v. State of Orissa

1991 Supp (2) SCC 451 – referred to.

List of Acts

Penal Code, 1860

List of Keywords

Murder; Common intention; Witnesses; Corroboration; Sentence for

life; Evidence; Eye-witnesses; Appreciation of evidence and law;

Testimonies; Oral and documentary evidence; Scene of offence;

Post-mortem report; Likely to cause death.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.2852

of 2023

From the Judgment and Order dated 26.04.2022 of the High Court

for the State of Telangana at Hyderabad in CRLA No.308 of 2005

Appearances for Parties

Gaurav Agrawal, D. Abhinav Rao, Ms. Prerna Robin, Rahul Jajoo,

Devadipta Das, Advs. for the Appellants.

Sirajudeen, Sr. Adv., Krishna Kumar Singh, Sri Harsha Peechara,

Duvvuri Subrahmanya Bhanu, Ms. Pallavi, Ms. Kriti Sinha, Akshat 

[2024] 2 S.C.R. 3

Velthepu Srinivas and Others v.

State of Andhra Pradesh (Now State of Telangana) and Anr.

Kulshreshtha, Rajiv Kumar Choudhry, G.Seshagiri Rao, Gaichangpou

Gangmei, Rahul Aggarwal, Amit Pratap Singh, Ms. Lothungbeni T.

Lotha, Yimyanger Longkumer, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Pamidighantam Sri Narasimha, J.

1. This criminal appeal by appellants (accused 1 to 4) is against the

concurrent conviction under Section 302 read with Section 34 and

sentence for life imposed by the Trial as well as the Telangana High

Court. For the reasons to follow, while we confirm the judgment and

sentence with respect to A-1, A-2 and A-4, the conviction and sentence

of A-3 is however modified to Section 304 Part II and sentenced to

10 years imprisonment. The details of the crime, trial, decisions of

the Courts, followed by our analyses and conclusions are as follows.

2. The case of the prosecution is that the accused 1 to 4 belonging to

the same family, and the deceased, come from the same village -

Janda Venkatpur, Asifabad, Telangana. It is alleged that the sister of

the deceased and the wife of A-4 were political aspirants and they

contested the Gram Panchayat elections. In the said elections, the

sister of the deceased succeeded and the wife of A-4 lost and that,

unfortunately, led to an animosity between the two groups, eventually

leading to the murder of the deceased which is described as follows.

3. On 15.11.2001, at about 8AM, the deceased was going to Luxettipet

on some work in an auto-rikshaw. In the same auto-rikshaw, one

Sanga Swamy @ Thruputhi (PW-6) and Smt. Chetimala Rajitha

(PW-9) were travelling as co-passengers. When the auto reached

the house of A-4, it is alleged that A-1 stopped the auto-rickshaw

and dragged the deceased out by pulling his legs. At the same time,

A-2 joined A-1 and both the accused dragged the deceased towards

the house of A-4. At that point, it is alleged that A-1 to A-4 attacked

the deceased with an axe, a sword, a stone and a knife, thereby

inflicting severe bleeding injuries leading to death of the deceased

on the spot.

4. The son of the deceased, Kona Kiran Kumar, later examined as

PW-1, being an eyewitness, proceeded to the police station and

reported the incident at about 9PM by way of a complaint (Exhibit 

4 [2024] 2 S.C.R.

Digital Supreme Court Reports

P-1).The Sub-Inspector of Police (PW-17), Luxettipet received the

complaint and registered an FIR (Exhibit P-32), and took up the

investigation. He then recorded the statement of PW-1.

5. In view of the gravity of the crime, the Circle Inspector of

Police (PW-18) took up further investigation and immediately

proceeded to the village to examine the scene of offence. He

found the body of the deceased in the front yard of A-4’s house.

He enabled PW-15 to take photographs of the dead body

(Exhibits P-21 to 30) and himself drew the sketch of the scene

of offence (Exhibit P-37). He also conducted an inquest over

the body of the deceased in the presence of PW-10 and

PW-12 (panch witnesses). The inquest report was marked as Exhibit

P-5. He also seized a stick (MO.4), control earth (MO.5), bloodstained earth (MO.6), cotton full shirt (MO.7) and a baniyan under

cover of a panchnama. PW-18 recorded the statements of PWs 4,

5, 6, 7, 8, 9, and 15. The prosecution maintained that PWs 1, 3, 4,

6, 7 and 8 are eyewitnesses to the incident.

6. The Judicial Magistrate First-Class (PW-16) also recorded the

statements of PWs 1 to 9 under Section 164 of the CrPC. The Postmortem over the dead body of the deceased was conducted by Dr

Victor Dinesh (PW-11) at 3PM on 15.11.2001 at the Government

Civil Hospital. PW-11, in his report, found 8 incised wounds, 3 partial

amputations and 1 deep lacerated wound. It was his opinion that the

cause of death was due to cardio-pulmonary arrest due to transaction

spinal cord at atlanto occipital joint.

7. The Sub-Inspector (PW-17) is said to have apprehended all the

accused on 23.11.2001 and produced them before PW-18 in his

office. PW-18 recorded the confessional statement of the accused in

the presence of PW-13 and PW-14 (panch witnesses). In pursuance

of the confession, all the accused led him and the panch witnesses

to the field of one Mr. Appani Gangaiah at Laximpur Shivar. There,

A-1 recovered and showed an axe, A-2 a sword and A-4 a knife

which were all hidden behind the bushes in the field. PW-18 seized

these objects in front of PW-11 to PW-13, later came to be marked

as Exhibits MOs 1 to 3. PW-18 also recovered a lungi belonging to

A-1 and one belonging to A-2 (Exhibit MO’s 9 and 10, respectively).

These material objects were sent to a Forensic Lab in Hyderabad,

the report of which is marked as Exhibit P-16.

[2024] 2 S.C.R. 5

Velthepu Srinivas and Others v.

State of Andhra Pradesh (Now State of Telangana) and Anr.

8. After completion of the above referred investigation, a chargesheet was filed on 09.01.2002. The Judicial First-Class Magistrate,

Luxettipet took cognizance of the offence under Section 302 read

with Section 34 of IPC, against all the accused. On production of the

accused, the Magistrate furnished copies of the charge-sheet and

other connected documents and committed the case to the Court

of Sessions and the Learned Sessions Judge numbered the trial as

Sessions Case No. 523 of 2003. After the charges were framed, the

accused pleaded not guilty and sought trial.

9. At the trial, the prosecution examined 18 witnesses being PW-1 to

PW-18, and marked 37 documents and 10 Material Objects (MO’s).

After the closure of evidence, the accused were examined under

Section 313 CrPC with reference to the incriminating material found

against them in the evidence of the prosecution witnesses, and they

denied the same. There are no defence witnesses.

10. The Trial Court, by its elaborate judgment dated 24.02.2005, found

all four accused guilty for the murder of the deceased and convicted

them under Section 302 read with Section 34 of the IPC. Accordingly,

they were sentenced to undergo imprisonment for life and to pay a

fine of Rs. 500 each, in default, to undergo simple imprisonment of

one month. All the accused appealed to the High Court.

11. For the completeness of narration, we may indicate that the High Court

initially acquitted all the accused by its judgment dated 21.06.2007,

but in appeal to this Court, their conviction and sentences were

set-aside, and the criminal appeal was remanded back to the High

Court for fresh consideration. It is in this background that the order

impugned came to be passed by the High Court.

12. After remand, the High Court confirmed the judgment of the Trial

Court and dismissed the criminal appeals. The Special Leave Petition

filed by the accused was admitted on 01.08.2022 and this is how we

have heard Shri Gaurav Agrawal, learned counsel for the appellants

and Shri Krishan Kumar Singh learned counsel for the State and

Shri Sirajudeen, learned senior counsel for the respondent No. 2.

13. Findings of the Trial Court: The Trial Court had examined the

credibility of the Prosecution witness in great detail. According to

the Trial Court, PWs 1, 3, 4, 6, 7 and 8 were eyewitnesses to the

incident and their testimonies were consistent. Among them, PW-6’s 

6 [2024] 2 S.C.R.

Digital Supreme Court Reports

testimony was a clinching piece of evidence as he was privy to the

incident from the very beginning. He was subjected to intense crossexamination with respect to his residence and other details about

the incident. Except for minor variations, the Trial Court found his

testimony unshaken, being consistent and natural. The Trial Court

found the testimonies PW-1, PW-3, PW-4, PW-7, PW-8 corroborating

the incident of stopping an auto, dragging the deceased out, and

subsequently assaulting the deceased with various weapons.

14. Collectively, the witnesses reiterated that A-1 stopped the autorickshaw and pulled the deceased out and A-2 attacking the

deceased’s hands with a sword. As they reached A-4’s house, A-4

took the sword from A-2 and struck the deceased on his head. A-4

also inflicted injuries by a knife. The common account about A-3 is

that he hit the deceased on the head with a stone. Accused No. 1

continued the attack and hit the deceased with an axe. Largely, these

witnesses recounted a consistent narrative of the attack, identifying

the weapons used and the roles of each accused.

15. Judgment of the High Court: According to the High Court, the

accounts of PWs 1, 3, 4, 6, 7 and 8, who witnessed the incident,

converge and are consistent with the injuries, weapons and motive

for the murder of the deceased. The High Court correctly relied on

the evidence of PW-6 who was in an auto-rickshaw along with the

deceased on the day of the incident. PW6’s evidence that he boarded

the auto-rickshaw of PW-5, followed by the deceased and Rajitha

(PW-9) joining him, was believed by the High Court.

16. The account of PW6 being corroborated by the evidence of PWs

1, 3, 4, 7 and 8, the High Court held that the evidence conclusively

establishes the guilt of the accused beyond reasonable doubt. The

High Court also noted the submission relating to the contradictions

in the Complaint (Ex. P1) and the testimonies of PWs 1, 3, 4, 6, 7

and 8, specifically relating to the acts of assault, however, the High

Court came to the conclusion that they were minor in nature.

17. Though the High Court saw that the trial court extensively examined

the evidence and considered all the submissions, it has nevertheless

considered the evidence afresh and after a detailed examination,

arrived at the same conclusion. We have given our anxious

consideration and have scrutinised the evidence of all the eye-

[2024] 2 S.C.R. 7

Velthepu Srinivas and Others v.

State of Andhra Pradesh (Now State of Telangana) and Anr.

witnesses in detail. We are in full agreement with the decision of the

Trial Court and the High Court. Their analyses and conclusions are

based on correct appreciation of evidence and law. However, there

is one aspect which stands out in the above-referred analyses of the

Trial Court and the High Court, and that pertains to the conclusion on

the culpability of A-3 for murder. We will now examine the evidence

as against A-3.

18. Evidence against Accused No.3: To commence with, the FIR states

that A-3 hit the deceased on the head, thereby causing death. The

Chargesheet states that A3 used a stone to do the same. However,

no further details have been provided. Further as we examine the

testimonies of all the eyewitnesses the following picture emerges.

PWs 1, 3, 4 and 6 state that the A-3 had used a stone to hit the

deceased’s head. PW-7 and PW-8 do not speak about his role.

19. PW-1, in his examination-in-chief and cross-examination, has

respectively stated as follows:

Chief - “When I was trying to go near the deceased, A-3

threatened me saying that if I go there he would kill me.

A-3 hit the deceased with a stone.”

Cross - “I read Ex. P-1 complaint and it does not show

that A-1 and A-3 threatened me and other eye witnesses

to kill if we tried to rescue the deceased”

20. PW-3, in his examination-in-chief and cross-examination, has

respectively stated as follows:

Chief - “After hearing the cries of the said Rajitha and

Swamy I, PW1, Kona Mallesh Akireeddy Ramesh, T.Odaiah

rushed to the spot. By the time we reached the spot the

deceased was lying on ground with injuries and on seeing

us A-3 took a stone and gave threats to us saying that he

would hit us if we go there.”

Cross - “It is not true to say that I did not state before the

police that when land other eye witnesses were going

near· the place of the incident A-3 armed with a stone

threatened to kill us. It is not true to say that for the first

time before this court I am deposing that A-3 armed with

a stone threatened me and other witnesses to kill”

8 [2024] 2 S.C.R.

Digital Supreme Court Reports

21. P.W. 4, in his examination-in-chief, has stated as follows:

“A-3 took a stone and hit on the head of the deceased.”

22. P.W. 6, in his examination-in-chief, has stated as follows:

“A-3 took a stone and hit on the head of the deceased.”

23. A reading of the judgment and order passed by the Trial as well as

the High Court would indicate that neither the prosecution or defence,

nor the court, have focussed on the role of A-3 as evidenced by

the oral and documentary evidence. There is nothing to attribute

A-3 with the intent to murder the deceased. In fact, both the Courts

have mechanically drawn an inference against A-3 under Section 34

of the Act merely based on his presence near the scene of offence

and his familial relations with the other accused.

24. As per the post-mortem report, the cause of death is “cardio

pulmonary arrest due to transaction spinal cord at atlanto occipital

joint”. The atlanto occipital joint is at the back of the neck, which is

the exact place where A-1 assaulted the deceased with the help of

an axe. This axe was then taken by A-2 and thereafter, by A-4, who

also assaulted the deceased. All the eye-witnesses are clear in this

account. In other words, it was only A-3 who never took the axe in

his hand. He only used a stone to assault the deceased.

25. Considering the statements of the eye-witnesses, coupled with the

post-mortem report, it is not possible to contend that A-3 would have

had the intention to commit the murder of the deceased and as such,

he cannot be convicted under Section 302 IPC.

26. In fact, Victor Dinesh (PW-11), who gave the post-mortem report

had indicated the injuries as under:

“1. Incised wound extending from right ear to left cheek

19 cm long 6 cm deep 2 mm wide grievous sharp

weapon, Ante mortem.

2. Incised wound on the right eye brow (4cms) simple

sharp weapon Ante mortem.

3. Incised wound on the left side of fore head about

9 cms above left eye brow measuring 8 cms sharp

weapon Ante mortem.

[2024] 2 S.C.R. 9

Velthepu Srinivas and Others v.

State of Andhra Pradesh (Now State of Telangana) and Anr.

4. Incised wound on left shoulder measuring 4 cm long

3mm wide. Sharp weapon ante mortem.

5. Incised wound on right should of 8 cm long 1 ½ cm

wide sharp weapon, ante mortem.

6. 5 cm x 6 Incised wound (slice) on the vertex. Sharp

weapon ante mortem.

7. 8 cms long incised wound backs of left wrist, sharp

weapon ante mortem.

8. 12 cms incised wound on the front of left hand, sharp

weapon, ante mortem.

9. Partial amputation of middle 3 fingers of left hand,

ante mortem.

10. Partial amputation of right thumb. Measuring 2 cms

sharp weapon ante mortem.

11. Partial amputation of right index finger measuring 3

cms sharp weapon, ante mortem.

12. Deep lacerated wound on the back of neck measuring

18 cms 7 cms with complete transaction of spinal

card and Atlanta occipital joint. Blunt weapon, ante

mortem.”

27. It is evident from the evidence of PW-11 that the deceased suffered

12 injuries, of which 10 are caused by sharp-edged weapons. The

11th injury is a partial amputation of the middle 3 fingers of left hand.

The final injury is a lacerated wound on the back of neck measuring

18 cms x 7 cms with complete transaction of spinal cord and atlanto

occipital joint. The Trial Court and the High Court have not analysed

the evidence as against A-3. They have proceeded to convict him

along with others under Section 302 with the aid of Section 34. The

cumulative circumstances in which A-3 was seen participating in

the crime would clearly indicate that he had no intention to commit

murder of the deceased for two clear reasons. Firstly, while every

other accused took the axe used by A1 initially and contributed to the

assault with this weapon, A-3 did not wield the axe at any point of

time. Secondly, A-3 only had a stone in his hand, and in fact, some

of the witnesses said that he merely threatened in case they seek 

10 [2024] 2 S.C.R.

Digital Supreme Court Reports

to intervene and prevent the assault. Under these circumstances,

we hold that A-3 did not share a common intention to commit the

murder of the deceased. Additionally, there is no evidence that A-3

came along with the other accused evidencing a common intention.

The description of the incident is that when the deceased came to

the scene of occurrence, A-1 dragged him to the house of A-4, and

the other accused joined A-1. In this context, A-3 picked up a stone

to assault the deceased.

28. Even though, A-3 might not have had the common intention to

commit the murder, nevertheless, his participation in the assault

and the wielding of the stone certainly makes him culpable for the

offence that he has committed. While we acquit A-3 of the offence

under Section 302 read with Section 34 of the IPC, he is liable for

the offence under 304 Part II IPC. The law on Section 304 Part II

has been succinctly laid down in Camilo Vaz v. State of Goa, (2000)

9 SCC 1, where it was held that:

14. This section is in two parts. If analysed, the section

provides for two kinds of punishment to two different

situations: (1) if the act by which death is caused is

done with the intention of causing death or causing such

bodily injury as is likely to cause death. Here the important

ingredient is the “intention”; (2) if the act is done with the

knowledge that it is likely to cause death but without any

intention to cause death or such bodily injury as is likely

to cause death. When a person hits another with a danda

on a vital part of the body with such force that the person

hit meets his death, knowledge has to be imputed to the

accused….

29. In the past, this Court has considered factors such as lack of medical

evidence to prove whether the act/injury was individually sufficient

to cause death1

, a single blow on head with a hammer2

 and lack

of cogent evidence of the eye-witnesses that the accused shared a

common intention to commit murder3

 as some factors to commute

a sentence from Section 302 to Section 304 Part II IPC.

1 Bawa Singh v. State of Punjab, 1993 Supp (2) SCC 754.

2 Sarup Singh v. State of Haryana, (2009) 16 SCC 479.

3 Ghana Pradhan & Ors. v. State of Orissa, 1991 Supp (2) SCC 451.

[2024] 2 S.C.R. 11

Velthepu Srinivas and Others v.

State of Andhra Pradesh (Now State of Telangana) and Anr.

30. Returning back to the facts of the case, there is certainly no escape

from coming to the conclusion that A-3 should have had the knowledge

that the use of a stone to hit the head of the deceased is likely to cause

death. However, as demonstrated before, the evidence is insufficient

to deduce a conclusion that he shared a common intention with the

other accused to commit the murder of the deceased. Considering

the role that A-3 has played, we hold him guilty of the offence under

Section 304 Part II IPC.

31. The perusal of the evidence would reveal that it is not the case of

the prosecution that A-3 was along with the other accused while the

deceased was dragged to the house. The deposition would reveal

that after the other accused assaulted the deceased with sword, A-3

came thereafter and assaulted the deceased with stone lying there.

We, therefore, find that the prosecution has not been in a position

to establish that A-3 shared the common intention with the other

accused to cause the murder of the deceased.

32. For the reasons stated above, we uphold the conviction and sentence

of A-1, A-2 and A-4 under Section 302 read with Section 34 IPC and

dismiss their Criminal Appeal No. 2852 of 2023 against the judgment

of the High Court of Telangana in Criminal Appeal No. 308 of 2005

dated 26.04.2022. We acquit A-3 of the conviction and sentence

under Section 302 read with Section 34 and convict him under

Section 304 Part II and sentence him to undergo imprisonment for

10 years. To this extent, the appeal of A-3 is allowed by altering the

conviction under Section 302 to Section 304 Part II IPC.

33. Pending applications, if any, are disposed of.

Headnotes prepared by: Nidhi Jain Result of the case: Appeal disposed of.