Venkat Rao & Ors Vs. R. Satya Bai & Anr  Insc 446 (11 September 2003)
Kumar & Arun Kumar. Arun Kumar, J
appeal is directed against an order dated 19th June, 1998 of the High Court of
Andhra Pradesh whereby the order of the trial court rejecting an application of
the plaintiff under Order XXVI Rules 13 and 14 read with Section 151 of the
Code of Civil Procedure was set aside and the trial court was directed to take
steps towards passing a final decree. Briefly the facts are :
to the suit are closely related being members of a family of four brothers.
Plaintiff No.1 was the widow of the eldest brother. On 14th May, 1975 she filed a suit for partition of
the joint family immoveable properties in the court of the District Judge, Adilabad
(A.P.). Plaintiff No.2 is the daughter of plaintiff No.1. Defendants are
younger brothers of husband of plaintiff No.1 and members of their families.
During the pendency of the suit, parties arrived at a compromise. A joint
application was filed under Order XXIII Rule 3 CPC praying that the compromise
be recorded and a decree in terms of the compromise be passed. The learned
District Judge passed the decree on 13th July, 1978 on the basis of the said compromise
entire controversy in the present appeal revolves around the decree dated 13th July, 1978. The question is whether the said
decree was a final decree or a preliminary decree. Defendants are the
appellants in this appeal while plaintiff is the respondent. We will refer to
the parties as plaintiff and defendants.
On 20th September, 1991 plaintiff No.2 (plaintiff No.1 had
died in the meanwhile) moved an application under Order XXVI Rules 13 and 14
read with Section 151 CPC praying that a Commissioner be appointed to divide
the joint properties by metes and bounds and to allot separate shares as per
the decree dated 13th
July, 1978. In the
body of the affidavit filed in support of the said application, the plaintiff
stated that she had been put in separate possession of properties at Serial
Nos. 1,2,3 and 5 in Schedule -I to the decree dated 13th July, 1978 while properties at Serial Nos. 4,6 and 7 were put in joint
possession. According to the plaintiff, a Commissioner had to be appointed in
pursuance of the decree to divide the joint properties as per shares of parties
by metes and bounds and to allow separate possession and enjoyment thereof.
Only defendant No.1 filed a reply to the said application opposing the same.
to the defendant with the passing of the decree dated 13th July, 1978 pursuant to the compromise arrived
at between the parties, the final partition had taken place and nothing
remained for taking any further steps for partition.
averred that in view of change in value of the properties with the passage of
time, the plaintiff was trying to wriggle out of the decree dated 13th July, 1978. In October, 1985 in view of such
an attitude of the plaintiff a further arrangement had taken place between the
parties. The said arrangement had also been acted upon. Even during the pendency
of the application, a compromise in writing had taken place between the parties
on 5th July, 1992. It was a Memorandum of family
arrangement to which the plaintiff was a party. The same had been arrived at in
the presence of parties and others including some advocates. The defendant
pleaded that in view of the subsequent developments, the court may pass a
decree in accordance with the Memorandum of family arrangement executed between
the parties. In any case as per the stand of the defendant, the application
under reply was not maintainable and was also hopelessly barred by time having
been made more than 12 years after the decree dated 13th July, 1978.
learned District Judge framed the following points for consideration for
deciding the application :
Whether the application is maintainable under law?
Whether there was any settlement between the parties subsequent to the passing
of the compromise decree and for that reason the petitioner is not entitled to
ask for appointment of Commissioner for the purpose of further division by
metes and bounds?
what relief ?
trial court recorded oral evidence on the said application. The defendants
examined five witnesses. The plaintiff however did not examine herself nor she lead
any documentary evidence. Defendants also proved certain documents on record.
The stand of the defendants is clear.
to them nothing remained for taking any further steps by the court which means
that according to defendants the decree dated 13th July, 1978 was a final decree and therefore such an application was
lead oral evidence regarding October, 1985 oral settlement between the parties
which was said to have been also acted upon. They led evidence regarding the 5th July, 1992 settlement by way of Memorandum of
family arrangement. The learned District Judge dismissed the plaintiff's
application by order dated 4th February, 1993. The application was held to be not maintainable. The learned District
Judge accepted the 1985 arrangement by way of mutual agreement between the
parties and stated that the said arrangement had been acted upon. The District
Judge, however, did not take into consideration the subsequent family
arrangement dated 5th
July, 1992 because it
was alleged to have taken place after the application under consideration had
already been moved.
plaintiff filed a revision petition under Section 115 CPC in the High Court
against the order of the District Judge dated 4th February, 1993. The High Court by its impugned judgment dated 19th June, 1996 allowed the Civil Revision Petition
setting aside the order of the District Judge. The High Court treated the
decree dated 13th July,
1978 as a preliminary
decree and, therefore, it entertained the application for final decree. The
High Court rejected the evidence led by defendants to establish the oral
agreement of 1985. It weighed with the High Court that even as per defendant
No.1 the oral arrangement of 1985 stood superseded by an arrangement of 1992.
The High Court further noted that according to both the parties the 1985
arrangement did not survive. The July, 1992 arrangement was rejected also on
the ground that it was not signed by all the parties. It was signed only by
three parties. In addition, it was observed that the said document was neither
properly stamped nor it was registered. The High Court refused to accept that
the decree dated 13th
July, 1978 stood
satisfied for the reason that satisfaction of the decree had not been recorded
in accordance with provisions of Order XXI Rule 2 CPC. For all these reasons,
the High Court directed the trial court to proceed with the application and
take steps for passing a final decree in the suit.
main question for consideration before us is :
the decree dated 13th
July, 1978 was a final
decree or it was only a preliminary decree? We have heard learned counsel for
the parties at length. We have been taken through the relevant legal
provisions. The parties' counsel cited judgments in support of their respective
we are of the view that the decision of the case really turns on the
interpretation of the compromise application and the decree dated 13th July, 1978. Before we set down to interpret
the decree dated 13th
July, 1978, we would
like to refer to relevant provisions of the Code of Civil Procedure.
Sub-section (2) of Section 2 of the Code defines a decree as :
means the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit and may be
either preliminary or final. It shall be deemed to include the rejection of a
plaint and the determination of any question within section 144, but shall not
adjudication from which an appeal lies as an appeal from an order, or
order of dismissal for default.
Explanation – 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." The application in question was
moved by the plaintiff under the provisions of Order XXVI Rules 13 and 14. They
are reproduced as under :
Rule 13 : Commission to make partition of immovable property – Where a
preliminary decree for partition has been passed, the Court may, in case any
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
: Procedure of Commissioner –
The Commissioner shall, after such inquiry as may be necessary, divide the
property into as many shares as may be directed by the order under which the
commission was issued, and shall allot such shares to the parties, and may, if authorised
thereto by the said order, award sums to be paid for the purpose of equalizing
the value of the shares.
reading of the definition of the word 'decree' shows that :
decree conclusively determines the rights of the parties with regard to all or
any of the matters in controversy in the suit; and
decree may be preliminary or final.
explanation to the sub-section makes it clear that 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.
decree may be partly preliminary and partly final.
settled law that there can be more than one preliminary decrees in a suit.
Similarly, there can be more than one final decrees in a suit.
this background of the legal position, we proceed to examine the decree dated
13th July, 1978. The suit in question was a suit for partition and separate
possession of 1/4th share of the plaintiffs in the suit properties. The
plaintiffs had desired to be in separate possession of their share by effecting
the partition by metes and bounds. The application for compromise which is an
admitted document contains the followings pleadings :
That the parties have effected the partition of the suit schedule immoveable
properties. The properties which are allotted to each branch of the family shown
in the Schedule as Nos. I to IV.
properties shown in Schedule –I are allotted to plaintiff Nos. 1 and 2.
properties shown in Schedule – II are allotted to Krishna Rao, defendant No.3
and his branch, that is, defendants No.3 to 13.
properties shown in Schedule-III are allotted to R. Venkat Rao, defendant No.1.
properties shown in Schedule – IV are allotted to R. Sudhakar Rao, defendant
parties are put in possession of their respective shares of immovable
……………… The your honour may be please to accord the compromise and pass the
decree in terms of compromise." With the application, Schedules I to IV were
appended which shows whatever properties were allotted to each party. There is
no dispute about the application or the Schedules attached to it regarding
distribution of the joint properties.
said application, the following decree was passed :
suit coming on before me for final disposal on 13.7.1978 in the present of Mr. Ramulu,
Advocate for the plaintiffs and of Mr.R.V. Kishan Rao, Advocate for the
Defendant No.1 and of Mr. P. Sridhar Rao, Advocate for the Defendant No.2 to 13
and agreed to compromise the matter of the suit and they have put into (court)
a deed of compromise praying that this court will pass a decree in accordance
with the term there, this court, in pursuance of the said deed of compromise,
do order and decree :
That the plaintiffs suit be and hereby is decreed as against DI to D13 in terms
of the compromise so far as it relates to the subject matter of the suit.
That the plaintiffs No.1 and 2 are allotted the properties shown in Schedule No.1(in
That the parties are put in possession of their respective share of immoveable
That the defendant 1 to 13 are to pay the amount of Rs.7500/- towards the 1/8th
share in the value of the house bearing No.25-11 situated at Mancherial within
three months from the date of compromise to the plaintiffs (1&2). In case
of failure, the plaintiffs will have right to recover the said amount by
executing the decree.
the parties will bear this own costs." Schedule I properties which fell to
the share of the plaintiffs as per the said decree is as under :
S C H E D U L E – I The properties towards the 1/8th share allotted to Smt. R. Satya
Bai D/o Sri Late S. Ra, Gopal Rao and Smt. Raj Kumar w/o V. Jagannath Rao,
(Plaintiffs Nos. 1&2).
Survey Extent Nature Situated Remarks No. No. Ac. Gts.
1.21 W.D.C. Naspur(V)
1.34 -do- -do-
Total 12.05 Dry -do- To the extent of Ac.3.20 Gts.
Total extent Dry -do- 77) Ac. 23.28 Gts. These lands are enjoyed 94) 1/4th
share jointly. 107) i.e. 5.37
House No.4-1 situated at Naspur old titled roof house (27' X 15') Bounded as follows
: House of R. Krishan Rao North : Open space East : House of R. Krishna Rao
West : House of R. Sudhakar Rao
House No.25-11 situated as Mancherial, plaintiffs 1/8th share in terms of cash
i.e. 7500/- recoverable from R. Venkat Rao, R.Sudhakar Rao.
Plot No.7-49 and 7-50 total 0.28 gts situated at Mancherial to the extent of
Defendant No.1 Sd/- Advocate for D-2 to 13 Sd/- Advocate for plaintiff "
We have carefully considered the compromise application as well as the decree
passed by the trial court on the basis thereof on 13th July, 1978. The tenor of
the entire compromise application in our view clearly indicates that the
parties settled the entire controversy in the suit and reached a compromise
with respect thereto. They effected partition of the Schedule immoveable
properties and allotment was made as per Schedules 1 to IV. Schedule I which
alone is relevant for the present purpose shows that the properties at Serial
Nos. 1 to 3 and 5 were placed in exclusive possession of the plaintiffs. So far
as property No.4 is concerned, the same was under acquisition and therefore
only compensation had to be received which could be shared by the parties as
and when it was received.
Property No.6, the plaintiff's share had been converted into an equivalent in
cash amounting to Rs.7500/- recoverable from the other three brothers. Property
at Serial No. 7 was under litigation as it was occupied by outsiders.
evidence on record shows that in view of the uncertainty about the litigation
with respect to property at Serial No.7, its partition was neither practical
nor desirable. Therefore, for all practical purposes, there was a complete
partition of the suit properties. The compromise further shows that the
partition of suit properties in this manner was acceptable to the plaintiffs,
that is why, they moved the joint compromise application and prayed for decree
in terms thereof. The compromise application further records the fact that parties
accepted that they had been put in possession of their respective share of
immoveable properties. The admission on the part of the parties including the
plaintiffs in our view leaves no scope for argument that the decree dated 13th July, 1978 was only a preliminary decree and a
final decree is yet to be passed. When parties have been put in possession of
their respective shares of immoveable properties by way of decree dated 13th July, 1978, nothing remains for final decree
proceedings. In fact, nothing remains to be performed further. If under that
partition some property or properties were kept joint, it was because the
parties agreed to that course of action. Having agreed to keep the properties
joint and having had the suit finally disposed of as per prayer made to the
court, it did not lie in the mouth of the plaintiffs to ask for final decree
proceedings again and to re-open the partition. The only course open to the
plaintiff in such a case would be to file a fresh suit for partition with respect
to properties which were kept joint.
fact that the plaintiffs applied for final decree proceedings after a lapse of
more than 13 years further shows that this was an after thought on the part of
the plaintiffs and we are inclined to believe defendant No.1 when he says that
in view of change in values of the properties due to passage of time, the
plaintiffs were trying to wriggle out of the partition decree dated 13th July,
court while dealing with the compromise application of the parties containing a
prayer for passing a decree observed that the suit had come before the court
for final disposal on 13th
July, 1978. The court
further observed that parties had agreed to compromise the matter of the suit
and they had put in court a deed of compromise praying that a decree be passed
in accordance with the terms of compromise. This shows that the court also proceeded
on the basis that it was finally disposing of the suit be recording a
compromise between the parties with respect to subject matter of the suit. The
court further observed that the suit of the plaintiff was decreed in terms of
the compromise and the plaintiffs 1 and 2 "are allotted the properties
shown in Schedule I (in compromise)". Again it was observed that the
parties are "put in possession of their respective share of immoveable
properties." The money decree was passed for Rs.7500/- in favour of
plaintiffs and against defendants 1 to 3 regarding property at Serial No.6 in
Schedule 1 with the direction to the defendants to pay the said amount within
three months failing which the plaintiffs were given a right to execute the
decree to recover the said amount. All this clearly shows that the suit was
finally disposed of. Parties were put in possession of respective properties
which fell to their share. This was as per the agreement reached by the parties
about the partition of the properties. In the agreement, the parties had
accepted that they had been put in separate possession of the various
immoveable properties allotted to each group. These proceedings dated 13th July, 1978 in our view leave no scope for an
argument that they were only by way of a preliminary decree and a final decree
was yet to be passed. In a partition suit, a court is required to define the
shares of the parties, identify the joint properties which are to be
partitioned, allocate properties to parties as per their respective shares and
put the parties in possession of properties allocated to them. All this
happened with agreement of parties when the court passed the decree on 13th July, 1978. No step is missing in those
nothing remained to be done.
all any party was aggrieved by any provision contained in the decree dated 13th
July, 1978 only course it was by way of a fresh suit for partition with respect
to immoveable properties which were agreed to remain joint in the decree dated
13th July, 1978.
counsel for the respondents (plaintiffs) argued that the 1978 decree was partly
preliminary and partly final.
support of this argument he drew our attention to the application of the
plaintiff under Order XXVI Rules 13 and 14 C.P.C. where it is stated that in
the decree dated 30th July, 1978, separate possession of properties at Serial
No,1,2,3 and 5 of Schedule-I had been allotted to the plaintiffs while
properties at Serial No.4, 6 and 7 of the said schedule remained joint. From
this the learned counsel submits that so far as properties at Sl.Nos.1, 2, 3
and 5 of Schedule I are concerned, the decree was a final decree while for rest
of the properties it was only a preliminary decree. It is further submitted by
the learned counsel for plaintiffs that in the plaint they had asked for
separate possession of all the properties falling to their share. Accordingly a
final decree with respect to the joint properties remained to be passed.
to sub-section 2 of Section 2 of the Code of Civil Procedure it was argued that
a suit has to be completely disposed of by a final decree. In the decree dated 13th July, 1978, properties were allotted to the
plaintiffs as per schedule I. The said schedule shows that certain properties
were exclusively allotted to the plaintiffs while certain other properties i.e.
properties at Serial Nos.4, 6 and 7 of schedule-I remained joint. For purposes
of determination whether the said decree was a preliminary decree or a final
decree or a decree partly preliminary or partly final, reference has to be made
to the decree itself. It is also important to gather the intention of the
parties from the compromise application because it was a compromise decree. We
have already made reference to both these documents. In our view, intention of
the parties is clear, i.e.
entire controversy in the suit was sought to be finally settled. In a partition
it is not necessary that each and every property must be partitioned and that
the parties are put in separate possession of respective portions of properties
falling to their share. In the present case, the parties mutually agreed to
keep some of the properties joint. The reason for this is also available from
the record. The properties which were kept joint were in a state that a
partition by metes and bounds was not possible. Property at Serial No.4 of the
Schedule I was under acquisition and there was no point in partitioning it by
meets and bounds.
property No.6 the share of the plaintiff had been quantified in terms of money
i.e. Rs.7500/- (Rupees Seven Thousand Five Hundred only) payable by the
defendants and the plaintiffs were given a right to execute the decree to that
extent. Property at Serial No.7 was fully occupied by outsiders with whom
litigation was going on. The fate of the litigation was unknown. Therefore,
understandably it was not partitioned. These facts clearly show that at the
time of compromise itself the parties had taken a final decision with respect
to partition of all the joint family properties and the same had been given
effect to. The compromise application does not contain any clause regarding
future course of action which gives a clear indication that nothing was left
for future on the question of partition of the joint family properties. The
curtain had been finally drawn.
learned counsel for plaintiff also tried to build argument based on the fact
that the 1978 decree has been referred as a preliminary decree by defendant
No.1 in his reply to the plaintiff's application under Order XXVI Rules 13 and
14 CPC. According to him this shows that defendant himself treated the said
decree as a preliminary decree.
argument has no merit. We have to see the tenor of the entire reply and a word
here or there cannot be taken out of context to build an argument. The reply by
defendant 1 seen as a whole makes it abundantly clear that the defendant was
opposing the prayer in the application including the prayer for taking
proceedings for passing final decree.
need not refer to the decisions cited by counsel for the parties. The judgments
reiterate well settled legal position regarding which there is no controversy.
As already observed the case has to be decided on the basis of the proceedings
held on 13th July, 1978 including the compromise application which is an
accepted document. In view of our decision that the decree dated 13th July,
1978 was a final decree, the question whether there was an oral arrangement
between the parties in October, 1985 or there was a fresh family arrangement on
5th July, 1992 becomes wholly irrelevant. In partition matter it is always open
to the parties to enter into fresh arrangement. They may even decide to be
again joint with respect to the properties which means that they may throw the
properties in the common pool again. The parties are free to adopt whatever
course of action they may choose in future by way of mutual arrangement.
fact that the compromise in 1978 was a final partition between the parties
finds support from absence of any averment in the compromise application
regarding reservation of right to the parties to seek partition with respect to
properties kept joint in future. The decree as a matter of fact leaves nothing
for future. As noticed earlier in a preliminary decree normally the court
declares the shares of the parties and specifies the properties to be
partitioned in the event of there being a dispute about the properties to be
partitioned. After declaring the shares of the parties and the properties to be
partitioned, the court appoints a Commissioner to suggest mode of partition in
terms of Order XXVI Rule 13 CPC. A perusal of Order XXVI Rule 13 CPC shows that
it comes into operation after a preliminary decree for partition has been
passed. In the present case, there was no preliminary decree for partition and,
therefore, Rule 13 of Order XXVI does not come into operation. If the
plaintiffs considered the decree dated 13th July, 1978 as a preliminary decree,
why did they wait to move the application for final decree proceedings for 13
years? The only answer is that the plaintiffs knew and they always believed
that the 1978 decree was a final decree for partition and it was only passage
of time and change in value of the properties which was not up to their
expectations that drove plaintiffs to move such an application.
adverting to the above facts of the case noticed by us and on which we have
based our decision, the High Court proceeded on the presumption that the decree
dated 13th July, 1978 was only a preliminary decree. No effort was made to find
out whether it was a preliminary decree or a final decree. No reference was
made to the compromise application or the decree. The presumption of the High
Court that it was a preliminary decree is the error in the approach of the High
Court in deciding the issue. For all these reasons, the impugned judgment of
the High Court is set aside. The application of the plaintiffs dated 28th
September, 1991 under Order XXVI Rules 13 and 14 read with Section 151 CPC is
dismissed. The appeal is accordingly allowed leaving the parties to bear their