Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION [C] NO.17932 OF 2009
Shub Karan Bubna @ Shub Karan
Prasad Bubna ... Petitioner
Vs.
Sita Saran Bubna & Ors. ... Respondents
ORDER
R. V. RAVEENDRAN, J.
The first respondent and his mother filed a suit for partition against
petitioner and two others in the year 1960 in the court of the First
Additional Judge, Muzaffarnagar, for partition and separate possession of
their one-third share in the plaint schedule properties and for rendition of
accounts. The suit was in respect of three non-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 the plots by metes
and bounds.
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2. Feeling aggrieved the petitioner (and others) filed an appeal before
the Patna High Court which was dismissed on 29.3.1974. The first
respondent filed an application on 1.5.1987 for drawing up a final decree.
The petitioner filed an application on 15.4.1991 to drop the final decree
proceedings as it was 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 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.
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 a right or seeking any relief, such
application is governed by the law of limitation;
that an application for
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drawing up a final decree would be governed by the residuary Article 137
of Limitation Act, 1963 (`Act' for short) which provides a period of
limitation of three years;
that as such right to apply accrues on the date of
the preliminary decree, any application filed beyond three years from the
date of preliminary decree (that 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 Sital Parshad v. Kishori Lal
[AIR 1967 SC 1236], the decision of the Privy Council in Saiyid Jowad
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.
The issue:
4. `Partition' is a re-distribution or adjustment of pre-existing rights,
among co-owners/coparceners, resulting in a division of lands or other
properties jointly held by them, into different lots or portions and delivery
thereof to the respective allottees.
The effect of such division is that the
joint ownership is terminated and the respective shares vest in them in
severalty.
A partition of a property can be only among those having a
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share or interest in it. A person who does not have a share in such
property cannot obviously be a party to a partition. `
Separation of share'
is a species of 'partition'.
When all co-owners get separated, it is a
partition. Separation of share/s refers to a division where only one or only
a few among several co-owners/coparceners get separated, and others
continue to be joint or continue to hold the remaining property jointly
without division by metes and bounds.
For example,
where four brothers
owning a property divide it among themselves by metes and bounds, it is
a partition. But if only one brother wants to get his share separated and
other three brothers continue to remain joint, there is only a separation of
the share of one brother.
In a suit for partition or separation of a share,
the prayer is not only for declaration of plaintiff's share in the suit
properties, but also division of his share by metes and bounds.
This
involves three issues:
(i) whether the person seeking division has a share
or interest in the suit property/properties;
(ii) whether he is entitled to the
relief of division and separate possession; and
(iii) how and in what
manner, the property/properties should be divided by metes and bounds?
5. In a suit is for partition or separation of a share, the court at the first
stage decides
whether the plaintiff has a share in the suit property and
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whether he is entitled to division and separate possession.
The decision
on these two issues is exercise of a judicial function and results in
first
stage decision termed as `decree' under Order 20 Rule 18(1) and termed
as `preliminary decree' under Order 20 Rule 18(2) of the Code.
The
consequential division by metes and bounds, considered to be a
ministerial or administrative act requiring the physical inspection,
measurements, calculations and considering various permutations/
combinations/alternatives of division is referred to the Collector under
Rule 18(1) and is the subject matter of the final decree under Rule 18(2).
The question is
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 separate possession of a
share therein which is extracted below:
"18. Decree in suit for partition of property or separate
possession of a share therein.--
Where the Court passes a decree for
the partition of property or for the separate possession of a share
therein, then, --
(1) if and in so far as the decree relates to an estate assessed to
the payment of revenue to the Government, the decree shall declare
the rights of the several parties interested in the property, but shall
direct such partition or separation to be made by the Collector, or
any gazetted subordinate of the Collector deputed by him in this
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behalf, in accordance with such declaration and with the provisions
of section 54;
(2) if and in so far as such decree relates to any other immovable
property or to movable property, the Court may, if the partition or
separation cannot be conveniently made without further inquiry, pass
a preliminary decree declaring the rights of the several parties,
interested in the property and giving such further directions as may
be required."
The terms 'preliminary decree' and 'final decree' used in the said rule are
defined in Explanation to section 2(2) of the Code and reads thus :
"
A decree is preliminary when further proceedings have to be taken
before the suit can be completely disposed of.
It is final when such
adjudication completely disposes of the suit. It may be partly
preliminary and partly final."
Section 54 of the Code dealing with partition of estate or separation of
share, relevant for purposes of Rule 18(1) reads thus:
"Where the decree is for the partition of an undivided estate assessed
to the payment of revenue of the government, or for the separate
possession of a share of such an estate, the partition of the estate or
the separation of the share shall be made by the Collector or any
gazetted sub-ordinate of the Collector deputed by him in this behalf,
in accordance with the law (if any) for the time being in force
relating to the partition, or the separate possession of shares, of such
estates."
Rule 13 of Order 26 of the Code dealing with Commissions to make
partition of immovable property, relevant for purposes of Rule 18(2)
reads thus :
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"Where a preliminary decree for partition has been passed, the Court
may, in any case not provided for by section 54, issue a commission
to such person as it thinks fit to make the partition or separation
according to the rights as declared in such decree."
7. We may now turn to the provisions of the Limitation Act, 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 'period of limitation' is defined as the
period of limitation prescribed for any suit, appeal or application by the
Schedule to the Act (vide clause (j) of section 2 of the Act).
The term
"prescribed period" is defined as the period of limitation computed in
accordance with the provisions of the said Act.
The Third Division of the
Schedule to the said Act prescribes the periods of limitation for
Applications.
The Schedule does not contain any Article prescribing the
limitation for an application for drawing up of a final decree.
Article 136
prescribes the limitation for execution of any decree or order of civil
court as 12 years when the decree or order becomes enforceable.
Article
137 provides that for any other application for which no period of
limitation is provided elsewhere in that division, the period of limitation
is three years which would begin to run from the time when the right to
apply accrues.
It is thus clear that every application
which seeks to
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enforce a right or seeks a remedy or relief on the basis of any cause of
action in a civil court, unless otherwise provided, will be subject to the
law of limitation.
But
where an application does not invoke the
jurisdiction of the court to grant any fresh relief based on a new cause of
action, but merely reminds or requests the court to do its duty by
completing the remaining part of the pending suit, there is no question of
any limitation.
Such an application in a suit which is already pending,
which contains no fresh or new prayer for relief is not one to which
Limitation Act, 1963 would apply.
These principles are evident from the
provisions of the Code and the Limitation Act and also settled by a series
of judgments of different High Court over the decades (See : for example,
Lalta Prasad vs. Brahma Din [AIR 1929 Oudh 456], Ramabai Govind v.
Anant Daji [AIR 1945 Bom. 338], Abdul Kareem Sab vs. Gowlivada S.
Silar Saheb [AIR 1957 AP 40], A. Manjundappa v. Sonnappa & Ors.
[AIR 1965 Kar. 73], Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors.
[AIR 1983 Orissa 121], Laxmi v. A.Sankappa Alwa [AIR 1989 Ker. 289].
We may 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].
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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 of the preliminary decree.
Sometimes either on
account of the pendency of an appeal or other circumstances,
the court
passes the decree under Rule 18(1) or
a preliminary decree under
Rule 18(2) and the matter goes into storage to be revived only
when an
application is made by any of the parties, drawing its attention to the
pending issue and the need for referring the matter either to the Collector
or a Commissioner for actual division of the property.
Be that as it may.
9. The following principles emerge from the above 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 (or his subordinate) to effect actual
partition or separation in accordance with the declaration made by the
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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 reasons.
First 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 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 with
the partitions by the Collector, except to the extent of any complaint of a
third party affected thereby.
9.2) In regard to immovable properties (other than agricultural lands
paying land revenue), that is buildings, plots etc. or movable properties:
(i) where the court can conveniently and without further
enquiry make the division without the assistance of any
Commissioner, or where parties agree upon the manner of
division, the court will pass a single decree comprising the
preliminary decree declaring the rights of several parties and
also a final decree dividing the suit properties by metes and
bounds.
(ii) where the division by metes and bounds cannot be
made without further inquiry, the court will pass a preliminary
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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 non-agricultural
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 utility and site conditions.
When
the Commissioner gives his report as to the manner of division, the
proposals contained in the report are considered by the court; and after
hearing objections to the report, if any, the court passes a final decree
whereby the relief sought in the suit is granted by separating the property
by metes and bounds. It is also possible that if the property is incapable
of proper division, the court may direct sale thereof and distribution of
the proceeds as per the shares declared.
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
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the suit. The 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 the Limitation
Act) nor an application seeking a fresh relief (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.
10. The three decisions relied on by the petitioner (referred to in para 3
above) are not relevant for deciding the issue arising in this 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
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 decree in a mortgage suit
decides all the issues and what is left out is only the action to be taken in
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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 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 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.
A decree in a partition suit
enures to the benefit of all the co-owners and therefore, it is sometimes
said that there is really no judgment-debtor in a partition decree.
A
preliminary decree for partition only identifies the properties to be
subjected to partition, defines and declares the shares/rights of the parties.
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.
Therefore, the concept of final decree in a
partition suit is different from the concept of final decree in a mortgage
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suit.
Consequently an application for a final decree in a mortgage suit is
different from an application for final decree in partition suits.
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 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 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 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 his case. What
he wants is relief. If it is a suit for money, he wants the money. If it is a
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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 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
perplexed as to why when a money decree is passed, the court does not
fix the date for 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 possession of his separated
share.
Why is it necessary for him 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 on that part.
Consequently,
adequate importance is not given to the final decree proceedings and
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execution proceedings which are considered to be ministerial functions.
The focus is on disposing of cases, rather than ensuring that the litigant
gets the relief. But the focus should not only be on early disposal of
cases, but also on early and easy securement of relief for which the party
approaches the court.
Even among lawyers, 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
conduct the final 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, we have found cases where a suit is decreed or a
preliminary decree is granted within a year or two, the final decree
proceeding and execution takes decades for completion.
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.
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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 obtains a decree.
It is necessary to
remember that success in a suit means nothing to a party unless he gets
the relief. 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 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 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. If there is 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
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continuous and seamless process from the stage of filing of suit to the
stage 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 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/quantification, and the
third stage of execution to give actual relief.
Conclusion
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
an application for final decree. Therefore, when a preliminary decree is
passed in a partition suit, the proceedings should be continued by fixing
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dates for further proceedings till a final decree is passed. It is the duty and
function of the court. Performance of such function does not require a
reminder or 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 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 proceedings.
.............................J.
(R. V. Raveendran)
............................J.
(B. Sudershan Reddy)
New Delhi;
August 21, 2009.
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