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2017 Supreme(SC) 1432
SUPREME COURT OF INDIA
ARUN MISHRA, MOHAN M. SHANTANAGOUDAR, JJ.
Sardar Surjeet Singh - Appellant
Versus
Juguna Bai (Since Dead) & Ors. - Respondents
Civil Appeal Nos.319-320 of 2009
Decided On : 02-08-2017
For the Appellants :K. Maruthi Rao, Ms. K. Radha, Ms. Anjani Aiyagari, Advocates.
For the Respondents:Jeetendra Mohan Sharma, Sr. Adv., P. Venkat Reddy, Prashant Tyagi, Anil Kumar Tandale, Advocates.
Once a preliminary decree has been passed in a partition suit, it cannot be reopened unless there is a subsequent event or change of law. The only remedy for a party seeking to establish a claim not covered by the preliminary decree is to file a separate suit.
Headnote:
Preliminary Decree - Impleadment - Settlement Deed - [Partition Suit, Civil Procedure Code] - The court considered the impleadment of respondent No.3 in the final decree proceedings based on a settlement deed dated 30.12.1978. The court held that the preliminary decree had attained finality and could not be reopened, and the only remedy for the respondent was to file a separate suit to establish her claim. The court referred to various decisions and legal provisions to support its conclusion.
Fact of the Case:
The case involved a partition suit where the appellant was adopted by Sardar Santh Singh, and a preliminary decree was passed in 1990, determining the shares of the parties. Subsequently, an application for impleadment was filed by Nima Kaur, claiming a share based on a settlement deed dated 30.12.1978. The High Court allowed the impleadment and directed the Trial Court to re-determine the shares.
Finding of the Court:
The court found that the preliminary decree had attained finality and could not be reopened. It held that the respondent's only remedy was to file a separate suit to establish her claim, and the High Court erred in directing further preliminary decrees to be passed.
Issues: The main issue was whether the impleadment of respondent No.3 in the final decree proceedings based on a settlement deed dated 30.12.1978 was permissible, considering the finality of the preliminary decree.
Ratio Decidendi: The court relied on legal provisions and previous decisions to establish that once a preliminary decree has been passed, determining the shares, it cannot be altered unless there is a subsequent event or change of law. The court emphasized that the only remedy for the respondent was to file a separate suit to establish her claim.
Final Decision: The court set aside the High Court's order and restored the order passed by the Civil Judge, holding that the respondent's only remedy was to file a separate suit. The court allowed the appeals to that extent and made it clear that it had not adjudicated on the rights of the respondent.
ORDER :
Heard the learned counsel for the parties.
2. These appeals have been preferred against the judgment and order dated 30.11.2007 passed by the High Court of Andhra Pradesh in Civil Revision Petition Nos.3914 and 3144 of 2007, whereby the High Court allowed the impleadment of respondent No.3 in the final decree proceedings on the basis of deed of settlement dated 30.12.1978.
3. The facts indicate that defendant Nos.2 and 3 are sisters. Late Sardar Santh Singh, with the consent of his wives, adopted the appellant herein-Sardar Surjeet Singh, when he was three years old. After the adoption, Smt. Juguna Bai gave birth to one daughter-Sathnam Kaur, defendant No.3. Later on, one adoption deed was executed on 7.7.1978.
4. A suit for partition was filed in which the Trial Court passed a preliminary decree on 11.10.1990 giving 1/3rd share to the appellant, 1/3rd share to be shared between two wives-Rama Bai and Juguna Bai, with 1/6th share each and remaining 1/3rd to Sathnam Kaur-daughter.
5. The appeal against the final decree was ultimately withdrawn by the plaintiff after the death of Rama Bai, during the pendency of the appeal. Thereafter, an application was filed in the year 1993 for passing of the final decree. Nima Kaur, the foster daughter of Sardar Santh Singh, filed I.A. No.1491 of 1993 under Order 1, Rule 10 CPC for impleading her as defendant No.4, claiming herself to be foster daughter of Sardar Santh Singh and, in view of the settlement deed dated 30.12.1978, she claimed 1/3rd share.
6. The appellant resisted the application. It was contended that she was not having any right as the preliminary decree, which had been passed in civil suit, had attained finality. The existence of the settlement deed dated 30.12.1978 was denied. On 12.7.1996, the Civil Judge dismissed the application filed by Nima Kaur. She preferred a revision in the High Court in C.R.P.No.3124 of 1996, to be impleaded as defendant No.4 in the Suit being O.S. No.54/81, which was allowed vide order dated 28.7.1997.
7. The Trial Judge, by a docket order dated 26.11.2002, directed the plaintiff to carry out the amendment and ordered that the final decree proceedings be closed. Against the said order, C.R.P.No.6088/2002 in O.S.No.54/81 and C.R.P. No.620/2003 in I.A.No.697/93 in O.S.No.54/81 were filed before the High Court.
8. The High Court allowed both the CRPs and directed the Trial Court to proceed with the final decree proceedings only and dispose of the same in accordance with law. The High Court opined that it was evident that admittedly no challenge was made as against the preliminary decree by respondent No.4, the preliminary decree passed on 11.10.1990 had become final and even the appeal filed by the plaintiff had been dismissed on 6.4.1993 confirming the said decree. A preliminary decree once passed could not be set aside unless and until the appeal was filed. Mere allowing an impleading petition, and that too during the final decree proceedings, would not entitle respondent No.4 to plead that the preliminary decree has to be reopened. Vide order dated 8.12.2003, the High Court opined that if at all respondent No.4 has any say, within legal parameter, the same is open to her to be agitated.
9. Nima Kaur thereafter, filed an application being I.A. No. 1258 of 2004 in I.A. No. 697/93 in O.S.No.54/81 to receive a document dated 12.8.1979 purported to be a relinquishment deed but the said application was rejected by the Civil Judge vide order dated 8.12.2004. Aggrieved thereby, C.R.P. No.86/05 was preferred by Nima Kaur, which was dismissed by the High Court. The High Court observed that these rights have to be considered by the executing court, if any, during final decree proceedings.
10. On 5.2.2007, the Civil Judge passed the final decree allotting half share to the appellant, 1/6th share to Juguna Bai and 1/3rd share to Satnam Kaur. It was also held by the said Court that Nima Kaur was not entitled for any share in the suit property and her remedy was
