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1996 Supreme(AP) 477
Andhra Pradesh High Court
Judges : R.M.BAPAT
Late R.Satya Bai - Appellant
Versus
Rachakonda Venkat Rao - Respondent
Decided On : 06-19-96
An oral agreement to modify a decree is not valid and enforceable unless it is reduced to writing and signed by the parties.
Headnote:
PARTITION SUIT - ORAL AGREEMENT - MODIFICATION OF DECREE - VALIDITY - EVIDENCE - ORAL AGREEMENT NOT PROVED - WRITTEN AGREEMENT NOT PROPERLY STAMPED AND REGISTERED - NOT BINDING ON PARTIES - PRELIMINARY DECREE PASSED BY CONSENT - CANNOT BE MODIFIED WITHOUT CONSENT OF PARTIES - APPLICATION FOR FINAL DECREE MAINTAINABLE.
Fact of the Case:
Plaintiff filed a suit for partition and separate possession against 13 defendants. During the pendency of the suit, a compromise was reached and a preliminary decree for partition in terms of the compromise was passed. After the death of the original plaintiff, her legal representative filed an application for appointment of a Court Commissioner to divide the property by metes and bounds and put the second plaintiff in possession of her share. The first defendant resisted the claim, contending that the decree was modified by an oral agreement in 1985 and a written agreement in 1992.
Finding of the Court:
The court found that the oral agreement of 1985 was not proved by the defendants, and the written agreement of 1992 was not properly stamped and registered, and was not signed by all the parties concerned. The court also found that the preliminary decree passed by consent could not be modified without the consent of the parties, and there was no evidence to show that the decree was satisfied.
Issues: 1. Whether the oral agreement of 1985 was valid and enforceable? 2. Whether the written agreement of 1992 was valid and enforceable? 3. Whether the preliminary decree passed by consent could be modified without the consent of the parties?
Ratio Decidendi: 1. An oral agreement to modify a decree is not valid and enforceable unless it is reduced to writing and signed by the parties. 2. A written agreement to modify a decree is not valid and enforceable unless it is properly stamped and registered. 3. A preliminary decree passed by consent cannot be modified without the consent of the parties.
Final Decision: The court allowed the revision petition filed by the second petitioner, set aside the order of dismissal passed by the learned District Judge, Adilabad, and directed the learned District Judge to proceed with the final decree application and pass appropriate orders according to law.
( 1 ) ONE late R. Satya Bai, wife of Rachakonda Ramgopal Rao, filed O. S. No. 4 of 1975 in the Court of the District Judge, Adilabad. The suit was filed for partition and separate possession against 13defendants. During the pendency of the suit, there was a compromise between the plaintiffs and the defendants and a preliminary decree for partition in terms of compromise came to be passed on 13-7-1978 and the property as described in Schedule- I was allotted in the shares of the plaintiffs. Three items were kept jointly. Thereafter, the original plaintiff no. 1 i. e. , (late) Satya Bai died. Her legal representative filed LA. No. 1268/91 for appointment of Court Commissioner for dividing the property by metes and bounds and putting the second plaintiff in possession of her share.
( 2 ) ON presentation of the application for final decree, notice was issued to all the defendants. The claim of the second plaintiff was resisted by the 1st defendant alone. The first defendant-1st respondent herein filed counter and stated mat after passing of the final decree, the decree was modified by oral agreement. It was further contended by him that the decree was modified by oral agreement in 1985. But it stands superseded by one agreement dated 5-7-1992 and therefore submitted that nothing has to be done in execution of a decree and therefore LA. No. 1268 of 1991 in O. S. No. 4 of 1975 be dismissed.
( 3 ) THE question posed before this Court whether the application filed under order 26 Rules 13 and 14 read with Section 151 C. P. C. for appointmentof Court commissioner to divide the joint property by metes and bounds and to allot separate shares as per the preliminary decree dated 13-7-1978 is maintainable or not?
( 4 ) THE contention raised by the first defendant i. e. , the 1st respondent herein, in his counter was that there was an oral agreement in the year 1985. Since the 2nd plaintiff could not manage the properties allotted to her under items 1 to 5, which are agricultural lands, she was given the entire house No. 25-11 situated at Mancherial which is item No. 6 of Schedule- I. It is further averred that she was put in possession of the property and thereafter she was continuing in possession. The 1st respondent further contended that in the year 1992 there was a fresh agreement by superseding the agreement of 1985 and they proposed to file an application for final decree in terms of the agreement dated 5-7-1992.
( 5 ) IN support of their case, the respondents herein examined R. Ws. 1 to5. The learned District Judge on consideration of the evidence held that since the agreement dated 5-7-1992 is brought into existence after filing I. A. No,1268 of 1991 for appointment of Commissioner cannot be taken into consideration. Relying upon me evidence of R. Ws. 1 to 5, he held that there was an agreement in the year 1985 under which the entire property mentioned in item No. 6 of schedule-I properties were given to the 2nd petitioner herein and therefore it is not necessary to appoint a Commissioner as the parties have settled the matter by 1985 agreement and thus the application for final decree came to be dismissed. Against the said order, the present revision has been filed.
( 6 ) IT appears from the record that this revision came up for hearing before the learned Single Judge of this Court. The learned Single Judge on hearing the matter on merits allowed the revision with costs.
( 7 ) IT further appears from the record that the respondents herein carried the matter to the Hon ble Supreme Court by filing Civil Appeal No. 207 of 1996 arising out of S. L. P. (Civil) No. 7181 of 1995. The Hon ble Supreme Court remanded the matter for the grounds stated in the order and thus the present civil Revision Petition has come up before this Court for re-hearing the matter.
( 8 ) THE learned counsel Mr. T. Veerabhadrayya appearing on behalf of the revision petitioners submitted that the learned District Judge erroneously dismissed the appl
