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2007 Supreme(Pat) 925
PATNA HIGH COURT
Ramesh Kumar Datta, J.
S.M.Mahtab Ahmad
Versus
Zaffar Ahsan
C.R. No. 1174 of 2006 ;
Decided On : MAY 10, 2007
The main legal point established in the judgment is that more than one final decree can be passed in a Partition Suit, and the function of the Court does not come to an end with the passing of a preliminary decree or even the final decree unless such final decree is made with respect to the shares of all the parties.
Headnote:
Partition Suit - Carving out Separate Takhta - Order 24.6.2006 - Order 20 Rule 18(2) - More than one final decree can be passed - Md. Hasnain vs. Md. Murtaza & Ors., 2000(1) B.B.C.J.- V 310- - Shankar Balwant Lokhande vs. Chandrakant Shankar Lokhande and Another, (1995)3 SCC 413
Fact of the Case:
The petitioner filed a Revision application against the rejection of the application for carving out a separate Takhta of the petitioner's share in a Partition Suit. The suit property consisted of agricultural land and houses. The Court had decreed the suit, holding the plaintiffs entitled to half share in the property. The defendant no. 3/petitioner filed a petition to carve out a separate Takhta of his share, which was rejected by the Court. The Court also confirmed the report of the Advocate Commissioner with respect to the properties allotted to the plaintiffs.
Finding of the Court:
The Court found that the defendant no. 3's application for carving out a separate Takhta was maintainable, and the Court was required to consider and proceed with delineating the separate shares of the defendant no. 3 and defendant nos. 1(a) to 1(d). The Court set aside the rejection of the defendant no. 3's claim and directed the Court to proceed to carve out the separate shares of defendant no. 3 and defendant nos. 1(a) to 1(d) in accordance with the law. The Court also permitted the parties to amend their pleadings and lead further evidence regarding oral hibba and oral partition.
Issues: The issues included the maintainability of the defendant no. 3's application for carving out a separate Takhta, the consideration of the defendant no. 3's claim, and the plea regarding oral hibba and oral partition raised by defendant nos. 1(a) to 1(d).
Ratio Decidendi: The Court held that more than one final decree can be passed in a Partition Suit, and the function of the Court does not come to an end with the passing of a preliminary decree or even the final decree unless such final decree is made with respect to the shares of all the parties. The Court also emphasized that the preliminary decree or the final decree with respect to the plaintiffs cannot be touched in the process of carving out the shares of the defendants among themselves.
Final Decision: The Revision application was allowed, and the Court directed the lower Court to proceed to carve out the separate shares of defendant no. 3 and defendant nos. 1(a) to 1(d) in accordance with the law. The Court also permitted the parties to amend their pleadings and lead further evidence regarding oral hibba and oral partition.
1. Heard learned counsel for the parties.
2. The petitioner has filed this Revision application against the order dated 24.6.2006 in IPS. No. 84 of 59 passed by Sub-Judge-VI Patna by which the application dated 25.8.2003 filed by the defendant no. 3/petitioner for carving out a separate Takhta of the petitioners share in the suit property has been rejected.
3. Short fact leading to the present matter are that Bibi Fatma and Khursheed Fatma who are now represented by their heirs and successors as Opposite Parties Nos. 1 to 12 filed the aforesaid Title Suit against their brother S.M. Aftab Ahmad for partition of their moiety share in the suit property consisting of agricultural land situated at village Mojipur and houses at village-Bahpura and Patna.
4. By judgment and decree dated 9.8.1971, the Addl. Subordinate Judge-IV, Patna decreed the suit holding that the plaintiffs were entitled to half share in the suit property. During the pendency of the suit, S.M. Aftab Ahmad died on 2.11.1967 and his heirs namely S.M. Shamim Ahmad and S.M. Mahtab Ahmad as also his widow Sayeda Khatoon were substituted as defendant Nos. 1, 3 and 2 respectively. All the said heirs jointly filed an appeal being F.A. No. 1251/1971 against the preliminary decree dated 9.8.1971.
5. By judgment and decree dated 11.5.2000 of this Court, the Preliminary decree was modified and certain lands and house acquired in the name of original defendant Aftab Ahmad were excluded in the decree. The matter was agitated before the Supreme Court but the judgment and decree as finally modified by order dated 11.5.2000 of this Court was affirmed and attained finality. Thereafter, application was filed by the plaintiff for preparation of final decree in their name.
6. While the said application was pending, defendant no. 2 Shamim Ahmad died on 15.1.2001 and was substituted by defendant nos. 1(a) to 1(d) who are Opposite Parties No. 13 to 16 in.the present I Civil Revision. Thereafter on 9.1.2002 Sayeda Khatoon, the defendant no. 2 also died and her name was expunged from the record since her heirs and legal representative were already on the record. On 25.8.2003, defendant no. 3/petitioner filed a petition praying to direct the Advocate Commissioner to carve out a separate Takhta of his share from the Takhta of the widow and sons of Shamim Ahmad, defendant nos. 1(a) to 1(d) in accordance with principles of Mohammadan Law. In the said petition, it was further stated that application was filed on his behalf before the Advocate Commissioner on 16.8.2003 for carving out the separate Takhta of the petitioner thereafter the same was filed in the Court. The said application was kept pending by the Court and disposed of ultimately by the composite order dated 24.6.2006. Rejoinder to the petition dated 25.8.2003 was filed by the plaintiffs and defendant nos. 1(a) to 1(d) on 4.9.2003 and 19.6.2004. In the rejoinder petition on behalf of the plaintiffs, it was submitted that the petition dated 25.8.2003 was misconceived and not tenable since only the plaintiffs rights have been defined by the Court as 8 annas share in the properties under partition and the rest eight annas share have been left joint amongst the defendants and have not been defined. In the said situation, it was submitted that the prayer was beyond the scope of the suit and the preliminary decree that has been passed. In the rejoinder petition filed on behalf of defendant no. 1(a) to 1(d), it was prayed to reject the petition dated 25.8.2003 filed by defendant no. 3 for the reason that the deceased defendant no. 2 Sayeda Khatoon on 3.7.1984 made an oral hibba of her share in the disputed property gifting half and half of her share to her two sons and she also delivered the possession of gifted properties to her two sons and they accepted the oral gift made by their mother and came in possession. Subsequently, after the death of S.Shamim Ahmad, the elder son of Sayeeda Khatoon on 15.1.2001, the share received by t
