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Kapila Bai Vs. H.S. Madhava Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 397 of 1954
Judge
Reported inAIR1957Kant71; AIR1957Mys71; ILR1957KAR14; (1957)35MysLJ107
ActsEvidence Act, 1872 - Sections 144; Code of Civil Procedure (CPC), 1908 - Sections 54 and 151 - Order 20, Rule 18; Stamp Act, 1899 - Sections 2(15) - Schedule - Article 45
AppellantKapila Bai
RespondentH.S. Madhava Rao and ors.
Appellant AdvocateC.K. Narayana Rao, Adv.
Respondent AdvocateS.L. Shankaranarayana Bhatta, Adv.
Excerpt:
.....made by her to join the matrimonial home has failed which shows that she has not deserted, on the contrary it is the appellant who has deserted her. - nammayya air1938mad307 .it has been observed that it is well settled that a final decree for partition has no existence as a decree until it is engrossed on proper stamp paper and that till that is done, the suit must be deemed to be pending......returned with a shara that the warrant was duly executed. acting on this shara, the court passed a final decree and the same was ordered to be drawn up and this was on 4-7-49. subsequently, the petitioner filed i. a. nos, x and xi alleging that the schedule properties were not divided, that she was not put in possession of her one-third share and that the shara on the warrant that, division had been effected and that the petitioner was put in possession of her one- third share was false. she also requested that the copy or the preliminary decree may be sent to the deputy commissioner for effecting a division by metes and bounds and for putting her in possession of her share. the learned judge dismissed these applications holding that there was already a division of the properties, by.....
Judgment:
ORDER

1. This is a revision petition preferred by the petitioner-plaintiff against the order of the learned First Additional District Judge, Bangalore, dismissing her applications I. A. Nos. X and XI in O. S. 9 Of 1944-45.

2. The facts that have given rise to this revision petition are briefly as under:

3. The petitioner-plaintiff obtained a preliminary decree against the respondents in O. S. 9 of 1944-45 for partition & possession of her 1-3rd share in the schedule properties. This was on 31-8-46. She made an application I A. No. VIII on 25-3-48 under Section 54 and Order XX, Rule 18 of the Civil Procedure Code praying that a copy of the preliminary decree may be sent to the Deputy Commissioner, Kolar, for effecting the division of the lands and putting her in possession of her 1/ 3rd share. A warrant was accordingly issued for division of the properties by metes and bounds and the same was returned with a shara that the warrant was duly executed. Acting on this shara, the Court passed a final decree and the same was ordered to be drawn up and this was on 4-7-49. Subsequently, the petitioner filed I. A. Nos, X and XI alleging that the schedule properties were not divided, that she was not put in possession of her one-third share and that the shara on the warrant that, division had been effected and that the petitioner was put in possession of her one- third share was false. She also requested that the copy or the preliminary decree may be sent to the Deputy Commissioner for effecting a division by metes and bounds and for putting her in possession of her share. The learned Judge dismissed these applications holding that there was already a division of the properties, by metes and bounds, that the petitioner was put in possession of her share that a final decree has been passed, that there cannot be another division, that when once the Court passes a final decree it becomes functus officio, that it has no Jurisdiction to re-open the proceedings and that the remedy of the plaintiff was by another regular suit against the respondents. It is against this order that this revision petition is preferred.

4. It appears to me that the order of the learned Judge cannot be sustained. Much importance appears to have been attached by the learned Judge to the shara made on the warrant that division was effected and that the petitioner was put in possession. This endorsement on the warrant made by the revenue authorities cannot be conclusive evidence of the fact that division was effected and possession was given. No doubt, such an endorsement on a warrant may give rise to a presumption that what is stated therein is true, but it is only a rebuttable presumption. When the plaintiff contended that the shara on the warrant was false and fraudulent, that no division was effected and that she was not put in possession of her one-third share as stated therein, the proper course would have been to examine the materials placed before, Court and, if necessary, to allow the parties to adduce evidence in that behalf and then give a finding whether what was stated in the endorsement was true or not, which course the Court below did not adopt. If authority is needed for the proposition that an endorsement on a delivery warrant is not conclusive evidence of the fact stated therein, I may refer to a case reported in 1 Mys. L R. 70(A). I may also refer in this connection to a case reported in Lekshmi Amma v. Mammen Mammen, ATR 195(5 Trav C 87 (B). Therein his Lordship Kumar Pillai has held that where the record of delivery of the property in pursuance of the sale certificate was brought into existence as a result of fraud and there has been no real delivery, it is competent for the Court under its inherent powers to set aside the alleged first delivery and order delivery of the same properties to the person entitled for a second time. Therefore the contention that the trial Court had no jurisdiction to enquire into the genuineness of the shara on the warrant cannot, be accepted.

5. There is another more important point that has to be considered in this case. Though actually a final decree has been drawn up in this case by the lower Court, it appears to me that in the eye of law the same must be deemed not to exist. A final decree for partition passed by a civil Court is an instrument of partition as defined under Section 2(15) of the Stamp Act. Such a decree can be engrossed only on stamp paper of sufficient value and till then the final decree cannot be deemed to have any existence. In this case, the final decree has been drawn up on a plain paper, The Court has no power to draw up a final decree on a plain paper and sign it if the required stamp paper is not furnished or is not available. If it does so, it will not be a correct thing. A decree for partition to be operative must be engrossed on stamp paper as required by the Stamp Act and until the Judge signs a decree so engrossed, it cannot be said that the proceedings have terminated, In Satyanandam v. Nammayya : AIR1938Mad307 . it has been observed that it is well settled that a final decree for partition has no existence as a decree until it is engrossed on proper stamp paper and that till that is done, the suit must be deemed to be pending. Therefore the finding of the lower court that the Court had become functus officio after signing the final decree engrossed on plain paper is not correct. In the case reported in Board of Revenue, Madras v. Moideen Rowther, 1955-2 Mad LJ 635; ((S) AIR 1956 Mad 207) (D), a Full Bench of that Court has taken the view enunciated above. That was a case where a final decree was engrossed on a paper insufficiently stamped. The Court held that the decree not having been engrossed on a requisite stamp paper must be deemed to be non-existent. Under these circumstances, I am of opinion that the finding of the learned Judge on I A. Nos. X and XI cannot be upheld.

6. In the result, the order of the learned First Additional District Judge on I.A. Nos. X and. XI is set aside and the lower court is directed to dispose of I.A. Nos. X and XI afresh according to law. This revision petition is allowed with costs, Advocate's fee Rs. 25/.

7. Petition allowed.


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