S. Satnam Singh &
Ors. Vs. Surnder Kaur & ANR.  INSC 2067 (2 December 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7008 OF 2008 (Arising
out of SLP (C) No.959 of 2008) S. Satnam Singh & Ors. ...
Surender Kaur & Anr. ... Respondents
S.B. Sinha, J.
a property can be added in the list of properties after a preliminary decree is
passed in a partition suit is the question involved herein.
parties hereto are successors of one late Surender Singh and one late
Harikishan Singh. They were brothers. First respondent is the widow 2 of late
Harikishan Singh and the second respondent is his son. The property which was
the subject matter of the partition suit was a house premises bearing Municipal
No.2-4-1099 situated at Nimbali Adds, Hyderabad admeasuring 671 sq. yards.
suit was filed by late Harikhsian Singh against the first petitioner and his
son Rajinder Singh. In the written statement, the said fact was admitted. The
question which arose for consideration of the court, however, was as regards
the share of the parties therein. Whereas according to the petitioner, the
plaintiff had only 1/3rd share in the suit property, according to the plaintiff
he had 1/2nd share therein.
the written statement, it was, inter alia, contended :
"There has never
been any such attempt by the plaintiff for partition of the property as alleged
in the plaint. In fact, the plaintiff has failed to render true and proper
account of the business of M/s.
Bombay Cycle Company
though he was specifically called upon to do so by the defendant - 2,
individually as well through his counsel. The plaintiff has also never
co-operated in managing the matters immediately after the death of Late Sunder
Singh, the father of the plaintiff and defendant - 1. Having knocked away some
of the securities and other amounts which were in the hands of the plaintiff
after death of late Sunder Singh singularly the plaintiff has chosen to file
the present suit for partition claiming 50% share in the 3 residential house,
which is mentioned as suit schedule property."
application for amendment of the said written statement was filed, inter alia,
"It is true that
Sri Sunder Singh died on 26.4.1980 intestate leaving behind his widow, the
plaintiff and the defendant - 1 herein. It is also true that widow of late Sri
Sunder Singh, i.e., Smt. Karam Kaur also died on 14.9.1992. However, the
allegation that she died intestate is incorrect and false. The plaintiff is
very well aware that Smt.
Karam Kaur executed a
registered will on 1.9.1981 before the Sub-registrar, Chikkadpally bequeathing
her 1/3rd share in the suit schedule property as well as her 50% rights as a
partner in the business of M/s. Bombay Cycle Company to the defendant No.2,
herein. In the circumstances the contrary allegations made in the plaint in
this respect are denied as false and fabricated. It would, thus, be apparent
that by any stretch of imagination the plaintiff cannot deny 50% rights in
respect of the suit schedule property as after the death of Sunder Singh, widow
of Sri Sunder Singh, Karam Kaur, plaintiff / and the defendant 1 herein had
become entitled to 1/3rd share each.
Smt. Karam Kaur
having executed a registered will on 1.9.81, her 1/3rd share naturally goes to
the defendant 2, herein. In the circumstances the plaintiff would not be
entitled to anything more than 33.33% of the suit Schedule property if at
It was furthermore
4 "There has
never been any such attempt by the plaintiff for partition of the property as
alleged in the plaint. In fact, the plaintiff has failed to render true and
proper account of the business of M/s.
Bombay Cycle Company
though he was specifically called upon to do so by the defendant - 2,
individually as well as through his counsel.
The plaintiff has
also never co-operated in managing the matters immediately after the death of
Late Sunder Singh, the father of the plaintiff and defendant - 1. Having
knocked away some of the securities and other amounts which were in the hands
of the plaintiff after death of late Sunder Singh singularly the plaintiff has
chosen to file the present suit for partition claiming 50% share in the
residential house, which is mentioned as suit schedule property. It would thus
be apparent that there is absolutely no merits in the suit and the plaintiff
would not be entitled for the share as claimed. The suit, therefore being
absolutely devoid of merits deserves to be dismissed with costs."
A replication to the
said written statement was also filed.
learned Trial Judge framed issues which read as under :
plaintiff is entitled for partition? If so, to what share? ii. To what relief?
On 21.1.02, basing on the pleadings of defendant No.3, the following additional
issues were settled :- 5 iii. Whether defendant No.3 is the legal heir of
defendant No.2? iv. Whether the Will deed claimed by defendant No.3 is true,
valid and binding on the plaintiff?"
suit was decreed declaring 1/3rd share in favour of the plaintiff as also the
first defendant, stating :
plaintiff is entitled to partition and separate possession of 1/3rd share only
in the suit schedule property.
ii. The first
defendant is entitled to 1/3rd share in the suit schedule property.
iii. Defendant No.3
being the legal heir of defendant No.2, who is not heard of since more than 7
years and thereby presumed to be dead in the eye of law. Defendant No.3 is entitled
to his (D2) 1/3rd share in the suit schedule property."
interlocutory application was filed by the appellant thereafter purported to be
in terms of Order XX Rule 18 of the Code of Civil Procedure read with Section
152 of the Code of Civil Procedure with regard to the share of the parties in
the said Bombay Cycle Company. The respondents objected thereto. By reason of
an order dated 14th March, 2006, the said application was allowed, directing :
the petitioners have raised a plea in respect of Bombay Cycle Company in their
written statement but there was no specific issue framed in the regard. The
learned counsel appearing for the petitioners submit that in order to shorten
the litigation instead of driving the parties to a separate action, the present
dispute can be decided in the present dispute itself. The petitioners in
support of their contention relied on the decision of our Hon'ble High Court in
Syed Ikramuddin v. Syed Mahamed Ali reported in AIR 1986 AP 267.
Further there is a
dispute with regard to the Bombay Cycle Co. business. Whether it is a joint
family business and whether the petitioners are having any share in the
property cannot be decided without making any enquiry in that direction.
Therefore, I feel
that the parties should be directed to adduce oral or documentary evidence in
respect of their respective contentions so as to enable this Court to decide
the point of controversy. It is also not out of place of mention here that the
Hon'ble High Court also directed to dispose of the matter at the earliest
parties are directed to lead oral and documentary evidence in support of their
contentions. The respondent No.4 herein is not a party to the suit. No relief
is passed against the respondent No.4 herein is not a party to the suit.
No relief is passed
against the respondent No.4 in this petition. Call on 16.3.2006."
civil revision application filed thereagainst by the respondents has been
allowed by reason of the impugned judgment. The High Court 7 referred to the
decision of this Court in Phoolchand v. Gopal Lal [AIR 1967 SC 1470] to
Court was dealing with a case where the shares had to be reallocated on account
of death of party and therefore the Court said such facts can be taken into
consideration and appropriate orders could be passed which could be a fresh
preliminary decree. But here we have a case where it is contended by the
defendants that they had mentioned in their written statement the property which
they now sought to include in the preliminary decree. Whole trial went on
decree was passed in 2003, and this particular property was not mentioned in
the decree as joint family property and after three years an application came
to be filed that it should be added in the decree which, in our view, is not
permissible. Therefore, we hold that the judgment of this Court in Syed
Ikramuddin v. Syed Mahamed Ali does not lay down a good law and the question is
answered that additional properties cannot be added for partition in the
preliminary decree after the preliminary decree attained finality in terms of
Section 97 of the Code."
P.S. Narasimha, learned counsel appearing on behalf of the appellant, would
submit that as in this case the only dispute between the parties was with
regard to the share in the suit property and, thus, it was obligatory on the
part of the court to pronounce its decision on all the issues.
was urged that a very well considered decision of the Andhra Pradesh High Court
in Syed Ikramuddin v. Syed Mahamed Ali [AIR 1986 AP 267] has wrongly been
overruled by reason of the impugned judgment.
G.V.R. Choudhary, learned counsel appearing on behalf of the respondent, on the
other hand, would support the judgment contending that the courts even do not
have any suo motu power to amend the decree as a preliminary decree once passed
`decree' is defined in Section 2(2) of the Code of Civil Procedure to mean 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. It may either be
preliminary or final. It may partly be preliminary and partly be final. The
court with a view to determine whether an order passed by it is a decree or not
must take into consideration the pleadings of the parties and the proceedings
leading upto the passing of an order. The circumstances under which an order
had been made would also be relevant.
determining the question as to whether an order passed by a court is a decree
or not, it must satisfy the following tests :
"(i) There must
be an adjudication;
9 (ii) Such
adjudication must have been given in a suit;
(iii) It must have
determined the rights of the parties with regard to all or any of the matters
in controversy in the suit;
determination must be of a conclusive nature; and (v) there must be a formal
expression of such adjudication."
adverting to the rival contentions of the parties, it must be kept in mind the
principle that ordinarily a party should not be prejudiced by an act of court.
It must also furthermore be borne in mind that in a partition suit where both
the parties want partition, a defendant may also be held to be a plaintiff.
Ordinarily, a suit for partial partition may not be entertained.
When the parties have
brought on records by way of pleadings and/or other material that apart from
the property mentioned by the plaintiff in his plaint, there are other
properties which could be a subject matter of a partition, the court would be
entitled to pass a decree even in relation thereto.
certain situations, for the purpose of complete adjudication of the disputes
between the parties an appellate Court may also take into consideration
subsequent events after passing of the preliminary decree.
In Ct. A. Ct.
Nachiappa Chettiar & Ors. V. Ct. A. Ct. Subramaniam Chettiar [(1960) 2 SCR
209], it was held :
10 "It would
thus be seen that the respondent's share in the family properties was not in
dispute nor was his share in the properties in Burma seriously challenged. The
only plea raised in respect of the latter claim was that the court had no
jurisdiction to deal with it. This state of the pleadings in a sense truly
reflected the nature of the dispute between the parties. It is common ground
that the family is a trading family and there could be no doubt that the assets
of the family were partible between the members of the family. It was on these
pleadings that the trial judge framed fifteen issues and set down the case for
dealing with the application under Section 21 of the Arbitration Act, 1940
where one of the questions was as to whether an immoveable property situated in
Burma could be a subject matter of reference, in Phoolchand & Anr. v. Gopal
Lal [(1967) 3 SCR 153], it was held :
"7. We are of
opinion that there is nothing in the Code of Civil Procedure which prohibits
the passing of more than one preliminary decree if circumstances justify the
same and that it may be necessary to do so particularly in partition suits when
after the preliminary decree some parties die and shares of other parties are
We have already said
that it is not disputed that in partition suits the court can do so even after
the preliminary decree is passed. It would in our opinion be convenient to the
court and advantageous to the parties, specially in partition suits, to have
disputed rights finally settled and specification of shares in the preliminary
decree 11 varied before a final decree is prepared. If this is done, there is
a clear determination of the rights of parties to the suit on the question in
dispute and we see no difficulty in holding that in such cases there is a
decree deciding these disputed rights; if so, there is no reason why a second
preliminary decree correcting the shares in a partition suit cannot be passed
by the court. So far therefore as partition suits are concerned we have no
doubt that if an event transpires after the preliminary decree which
necessitates a change in shares, the court can and should do so; and if there
is a dispute in that behalf, the order of the court deciding that dispute and
making variation in shares specified in the preliminary decree already passed
is a decree in itself which would be liable to appeal. We should however like
to point out that what we are saying must be confined to partition suits, for
we are not concerned in the present appeal with other kinds of suits in which
also preliminary and final decrees are passed. There is no prohibition in the
Code of Civil Procedure against passing a second preliminary decree in such
circumstances and we do not see why we should rule out a second preliminary
decree in such circumstances only on the ground that the Code of Civil
Procedure does not contemplate such a possibility."
The said principle
was reiterated in Mool Chand & Ors. v. Dy. Director, Consolidation &
Ors. [AIR 1995 SC 2493], stating :
of `decree' contained in Section 2 (2) read with the provisions contained in
Order 20, Rule 18(2) as also Order 26, Rule 14 of the Code indicate that a
preliminary decree has first to be passed in a partition suit and thereafter a
final decree is passed for actual separation of shares in 12 accordance with
the proceedings held under Order
26. There are, thus,
two stages in a suit for partition. The first stage is reached when the
preliminary decree is passed under which the rights of the parties in the
property in question are determined and declared. The second stage is the stage
when a final decree is passed which concludes the proceedings before the Court
and the suit is treated to have come to an end for all practical
Chaudhary, however, has placed strong reliance in Venkata Reddy & Ors. v.
Pethi Reddy [AIR 1963 SC 992], wherein it was held :
decree passed, whether it is in a mortgage suit or a partition suit, is not a
tentative decree but must, in so far as the matters dealt with by it are
concerned, be regarded as conclusive. No doubt, in suits which contemplate the
making of two decrees a preliminary decree and a final decree - the decree
which would be executable would be the final decree. But the finality of a
decree or a decision does not necessarily depend upon its being executable. The
legislature in its wisdom has thought that suits of certain types should be
decided in stages and though the suit in such cases can be regarded as fully
and completely decided only after a final decree is made the decision of the
court arrived at the earlier stage also has a finality attached to it. It would
be relevant to refer to Section 97 of the Code of Civil Procedure which
provides that where a party aggrieved by a preliminary decree does not appeal
from it, he is precluded from disputing its correctness in any appeal which may
be preferred from the final decree. This provision thus clearly indicates that
as to the matters thus clearly 13 indicates that as to the matters covered by
it, a preliminary decree is regarded as embodying the final decision of the
court passing that decree."
Section 97 of the Code of Civil Procedure provides for an appeal against
preliminary decree but the said provision, in our opinion, would not be a bar
to file an application for amendment of a decree.
court may not have a suo motu power to amend a decree but the same would not
mean that the court cannot rectify a mistake. If a property was subject matter
of pleadings and the court did not frame an issue which it ought to have done,
it can, at a later stage, when pointed out, may amend the decree.
power of amendment, in a case of this nature, as noticed hereinbefore, would
not only be dependent upon the power of the court but also the principle that a
court shall always be ready and willing to rectify the mistake it has
issues were not correctly framed. An additional written statement was permitted
to be filed. A replication thereto also was allowed.
It was in that
situation, the question as to whether the business transaction 14 of Bombay
Cycle Company could be a subject matter of the suit for partition or not was
required to be determined on its own merits.
Trial Court felt that it had committed a mistake. In such a situation, the
court, in our opinion, committed no infirmity in directing rectification of its
the reasons aforementioned, the impugned judgment cannot be sustained. It is
set aside accordingly. The appeal is allowed. No costs.