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KERALA HIGH COURT
A. Hariprasad, J.
K.T. Thomas —Appellant
versus
Anna @ Accamma John —Respondent
Unnumbered Original Petition (Civil) No.136 of 2018
Decided on 6.7.2018
(B) Property Law—Partition—In a suit for partition, there can be any number of preliminary decrees passed, if circumstances of case justify—But, it should be passed before passing of final decree in suit—Without deciding claim of partibility of estate and he share to which a claimant is entitled in a preliminary decree proceedings, a party cannot straight away ask for separation of his shares in final decree proceedings—There cannot be a supplementary final decree passed touching upon matters already concluded in earlier final decree proceedings—Partition is a re-distribution or adjustment of pre-existing rights among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to respective allotees—Separation of share is a species of partition—When all co-owners/co-sharers get separated, it is a partition—Separation of shares refers to a division, where only one or only a few among several co-owners/coparceners get separated and others continue to be joint or continue to hold remaining property jointly without a division by metes and bounds. (Paras 13, 15 and 21)
(C) Civil Procedure Code, 1908—Section 96 and Order XLI—Appeal against partition decree—An interlocutory application filed by a party to a partition suit for passing a final decree is only a reminder to court for fully and finally discharging its obligations—Since court adjourns case sine die after passing a preliminary decree, application filed for passing a final decree by one of parties is only a request to court to finally dispose of case which amounts to its non-negotiable responsibility—Notwithstanding that final adjudication in such an application is captioned normally as an order, in reality it is a final judgment, concluding all aspects relating to allotment of properties—Appeal is maintainable against an order refusing to pass a final decree and such an order will fall within definition of decree in Section 2(2) of Code, because it amounts to a formal expression of an adjudication which, so far as regards court expressing it, conclusively determines rights of a party. (Paras 23 and 24)
Result: Unnumbered Original Petition dismissed.
A. Hariprasad, J.—Legal questions arising for determination are two fold. Firstly, whether a defendant in a partition suit, who opposed partibility of the estate and whose share was not determined in the preliminary decree, could straight away apply for passing a final decree, without getting a supplementary preliminary decree passed? Secondly, whether an original petition, under Article 227 of the Constitution of India, could be maintained against an order, whereby an application filed by the said defendant for passing a supplementary final decree was dismissed?
2. The matter came up before the Court on an objection raised by the Registry that the original petition for the above relief is not maintainable and the remedy of the petitioner, if at all, is only to file an appeal under the provisions of the Code of Civil Procedure, 1908 (in short, “Code”).
3. Heard Sri. Keerthivas G., learned counsel appearing for the petitioner. Learned counsel, Sri. P. Viswanathan ably assisted this Court as amicus curiae in resolving the legal issue.
4. Before answering the questions posed, I shall state relevant facts briefly. Petitioner is the 4th defendant in a suit for partition. It is averred in the plaint that the sole plaintiff and the defendants 1 to 3 are entitled to get 1/4th share each in the plaint schedule property. Defendants 1, 4 and 5 in their turn contended that the property is not partiable and the plaintiff’s rights, if any, are barred by ouster, adverse possession and limitation. Trial court’s decree of dismissal was challenged before this Court in a first appeal. After hearing the parties, this Court found that the plaint schedule properties are partiable and also that the plaintiff is entitled to 1/4th share in the properties. Subsequently, the plaintiff filed a final decree application and obtained a final decree passed by allotting her 1/4th share over the properties. She had taken delivery of the properties set apart to her share.
5. Petitioner, the 4th defendant in the suit, is the son of the 3rd defendant, who did not contest the case. Since the 3rd defendant did not pay the requisite court fee, his share was not declared and no allotment was made to him in the preliminary decree. Whether that procedure adopted by the court is correct or not will be considered later. Petitioner contends that he purchased the 3rd defendant’s 1/4th share over the plaint schedule item Nos.1 to 3 properties as per a sale deed. It is therefore contended that he is entitled to get allotment of the above share. In the application, the petitioner’s siblings raised a specific contention that the sale deed relied on by the petitioner is a forged document and it is not executed by the 3rd defendant. Factually, entitlement of the petitioner for claiming allotment has been disputed. As per the impugned order, the trial court observed that since the 3rd defendant’s share itself was not declared in the preliminary decree and that the assignment said to have been made by the 3rd defendant in favour of the 4th defendant (petitioner) is under challenge, the application cannot be maintained.
6. Without labouring much, the first point can be easily answered. Section 2(2) of the Code defines “decree” in the following terms:—
“decree” 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 include—
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any 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 preliminar
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