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Muppanna Halappa Vs. Channappa Halappa and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberExn. Regular Appeal No. 12 of 1958
Judge
Reported inAIR1964Kant169; AIR1964Mys169; (1963)2MysLJ346
ActsCode of Civil Procedure (CPC), 1908 - Sections 47, 54, 151, 225 and 265 - Order 20, Rule 18(1); Constitution of India - Article 227; Bombay Land Revenue Code
AppellantMuppanna Halappa
RespondentChannappa Halappa and anr.
Appellant AdvocateV. Tarakaram, Adv.
Respondent AdvocateV.S. Malimath, Adv.
Excerpt:
.....a separate house cannot be construed as an admission, for holding that it proved the factum of partition. partition: [d.v. shylendra kumar, j] palu patti though palu patti regarding earlier partition is not attracted by the provisions of the registration act, it is not admissible for want of sufficient stamp duty under section 34 of the karnataka stamp act. statutory provisions excludes admissibility of document and also affects transfer of interest under document. such an embargo cannot be got over by leading oral evidence to contrary. under the provisions of the evidence act, documentary evidence excludes oral evidence document having not been sought to be sustained by making good the deficit duty and paying the penalty cannot be admitted in evidence and cannot be relied..........appeal is, whether the action of the collector, in partitioning an estate tinder section 54 of the code of civil procedure, (hereinafter called the code) pursuant to a decree passed by the court under order 20 rule 18(1) is open to review and correction by the court which passed the decree. that question arises in this way: in special civil suit no. 76/1937 on the file of the court of the civil judge, senior division dharwar, instituted by respondent 1 against the appellant and respondent-2 who were defendants 2 and 3 respectively, for partition of joint family properties, a decree for partition of an estate assessed to the payment of revenue to the government was passed in accordance with sub-rule (1) of rule 18 of order xx of the code. the decree, inter alia, declared the rights of the.....
Judgment:

Govinda Bhat, J.

1. The question presented for determination in this appeal is, whether the action of the Collector, in partitioning an estate tinder Section 54 of the Code of Civil Procedure, (hereinafter called the Code) pursuant to a decree passed by the court under Order 20 Rule 18(1) is open to review and correction by the court which passed the decree. That question arises in this way:

In Special Civil Suit No. 76/1937 on the file of the Court of the Civil Judge, Senior Division Dharwar, instituted by respondent 1 against the appellant and respondent-2 who were defendants 2 and 3 respectively, for partition of joint family properties, a decree for partition of an estate assessed to the payment of revenue to the Government was passed in accordance with Sub-rule (1) of Rule 18 of Order XX of the Code. The decree, inter alia, declared the rights of the plaintiff and defendants 2 and 3 who were interested in the suit property, 2nd directed partition of the estate and separation of the shares to be made by the Collector, or by Gazetted subordinate to the Collector deputed by him, in accordance with the declaration of the rights and with the provisions of Section 54 of the Code. In First Appeal No. 70/1946 on the file of the High Court of Bombay, the decree of the trial 'Court was modified and the plaintiff and defendants 2 and 3 were each declared to be entitled to a 1/3 share in all the suit properties except in Survey No. 4 of Somalapur and survey No. 216/9 and 216/10 of Aremallapur in respect of which each party was declared to be entitled to a 1/3rd share in all the suit properties except in Survey No. 4 of Somalapur and survey No. 216/9 and 216/10 of Aremallapur in respect of which each party was declared to be entitled to a 1/4th share.

That decree was sent to the Collector for effecting partition in the manner provided under Section 54 of the Code. The Collector effected the partition on 19-8-1957 and fixed the 14th day of December, 1957 for delivery of the share allotted to the plaintiff. On 10-12-1957, defendant-2 filed an application purporting to be one under Section 47 of the Code, to the Court of the Civil Judge, Senior Division, Hubli, to call for the records of the case from the Collectorate, on the allegation that the partition made by the Collector is unequal and contrary to the mandate of the decree.

The plaintiff opposed the application on three grounds, viz. (a) the Civil Court has no jurisdiction to enquire into the application, (b) the application is not maintainable under Section 47, and (c) the partition made by the Collector was fair and equal. The learned Civil Judge made an order on 13-12-1957 rejecting the application on the ground that the Pranth Officer, Haveri Division, who effected the division 'had applied his mind for partitioning the lands equitably and by metes and bounds'. The learned Civil Judge rested his conclusion on the circumstances that the Pranth Officer has made provision for payment of Rs. 83-5-8 by each of the defendants 2 and 3 to the plaintiff for equalisation of shares, which according to the learned Civil Judge suggests that the quality of the lands allotted to the plaintiff must be inferior to those allotted to defendants 2 and 3, despite the fact that 92 acres and 6 guntas out of the total extent of 196 acres had been allotted to the share of the plaintiff. The objections of the plaintiff that the Civil Court has no jurisdiction to enquire into the application and . that the application is not maintainable under Section 47, were overruled by the learned Civil Judge. Against the said decision, defendant-2, the applicant before the court below has preferred the above appeal.

2. The complaint of the appellant is that while under the decree he is entitled to an equal share with the plaintiff, the Collector, while partitioning the estate has divided the estate into equal shares and allotted 92 acres and 6 guntas, out of a total extent of 196 acres, to the plaintiff which is very much in excess of his legitimate share, and that the unequal division made by the Collector contravenes the mandate of the decree. Pefendant-2 filed an application before the court below on 10-12-1957, and the plaintiff his objections on 13-12-1957, and on the same date, the order under appeal was made. The only material before the learned Civil Judge to base his decision was a certified copy of the order of the Pranth Officer giving the description of the entire estate and of the share allotted to the plaintiff.

We have perused the order of the Pranth Officer which does not disclose the reasons for allotting a larger extent of the land to the share of the plaintiff, when the parties are entitled to equal shares. In our opinion, the reasons given by the learned Civil Judge for his conclusion that the Pranth Officer must have applied bis mind correctly, cannot be supported. The circumstance that the defendants 2 and 3 were directed to make cash payments to the plaintiff for equalisation of shares does not lead to the necessary inference, as the learned Civil Judge seems to think, that the Pranth Officer must have applied his mind correctly. If the court below is right in its opinion that the Civil Court has the jurisdiction to correct the errors of the Collector, we would have had no hesitation in setting aside the order under appeal and directing the Court below to call for the records of the proceedings of the Collector and to examine the same for the purpose of satisfying itself that the shares were not unequal as alleged.

3. Sri V.S. Malimath, learned counsel for res-pondent-1 contended that the court below had no jurisdiction to entertain the application made by the appellant complaining against the action of tbe Collector, while Sri V. Tarakaram, learned Counsel for the appellant urged, that the action of the Collector is subject to the control and correction by the court which passed the decree and sent it to him for execution.

No decision of this court directly dealing with the question now before us, has been brought to our notice. On an analysis of the decisions of other High Courts, relied on, by the learned counsel on both sides in support of their respective contentions, we are able to find support in them for the following three conflicting views:

1. The Civil Court has a limited power of controlling the action taken by the Collector and correcting his errors if the Collector contravenes a term of the decree or transgresses the law relating to partition, or refuses to execute a decree, but a a complaint that the Collector had made an objectionable partition is not a ground on which the court would interfere: vide Dev Gopal Savant v. Vasudev Vithal Savant, ILR 12 Bom 371; 'Purushotham Bhaskar v. Balkrishna Pandurang, ILR 28 Born 238; Timmanna Parmeshwar v. Govind Ganpati : AIR1926Bom258 ; Ningappa Balappa v. Abash-khan Gouskhan : AIR1956Bom345 .

2. The court which passed the decree has the power to correct the mistakes of the Collector, and a complaint that the Collector had allotted too much land to a sharer is a ground for interference by the Civil Court: vide Ramachandra Dinkar v. Krishnaji Sakharam, ILR 40 Bom 118: AIR 1915 Bom 279.

3. The Court which passes a decree under Sub-rule (1) of Rule 18 or Order XX of the Code, has no power to hear objections to the partition made by the Collector or his subordinate, or to modify the partition, vide Shrinivas Hanmant v. Gurunath Srivinivas, ILR 15 Bom 527; Bhimangauda Konapgauda v. Hanmant Rangappa, ILR 42 Bom 689: (AIR 1918 Bom 206); Venkataraghava Rao v. Venkata Hanumantha Rao, AIR 1945 Mad 336 (FB) and Abdul Ali v. Mirza Viqar Ali Beg, AIR 1949 Oudh 37.

4. In ILR 12 Bom 371, it was held that a complaint that the Collector bad made an objectionable partition was not a ground on which the subordinate Judge would interfere. In the course of the judgment, however, there are certain observations by West, J. which have been relied on by the learned counsel for the appellant. The learned Judge observed thus:

'Now the Collector no doubt acts ministerially in executing a decree of a Civil Court, but then a certain discretion is allowed to him: and so long as ha keeps within the bounds thug prescribed the Civil Court has no right to replace his discretion by its own. This does not deprive the Court of judicial control of its decree, as for instance, if it should appear to have been obtained by fraud or surprise; but in the present case nothing of that kind was relied on.'

In ILR 28 Bom 238, the complaint to the Civil Court was on the ground that a certain direction given in the decree had been disregarded by the Collector while effecting the partition. The lower Courts had upheld the objection that the Court had no jurisdiction to hear objections to a partition effected by a Collector under Section 265 of the Code which corresponds to Section 54 in the present Code. In the second appeal, Chandavarkar, J. allowed the appeal holding that the Civil Court has jurisdiction to hear an objection to the partition. He stated:

'That where a Collector has in partitioning an estate contravened the decretal command of the Court or otherwise acted ultra vires, his action is subject to the control and correction of the Court which passed the decree and sent it to him for execution.'

In AIR 1926 Born 258, Macleod, C.J. with whom Coyajee, J. agreed, stated as follows:

'If the Collector carried out the terms of the decree and divides the decree and divides the property, a party who is not satisfied with the division cannot ask the Court to interfere with the partition effected by the Collector. But it the Collector disregards the terms of the decree and divides the property in contravention of its terms, clearly the Court is entitled to interfere.'

In : AIR1956Bom345 , the Court followed its earlier view that the Civil Court is not entirely deprived of the power of controlling the action taken by the Collector, but that power is a limited one to be exercised only if the Collector contravened the decretal order or transgressed the law relating to partition or refused to execute the decree.

5. In ILR 40 Bom 118: (AIR 1915 Bom 279), the Court entertained an objection to the partition on the ground that it was not in accordance with the terms of the decree. Scott, C. J. observed thus:

'the Collector acts ministerially in executing the Court's decree, and an injustice has been done by awarding to defendant No, 8. the appellants' house as well as too much land, and that the Court cannot allow a mistake of one of its agents in carrying out its direction to work permanent injustice.'

The case reported in ILR 40 Born 118: (AIR 1915 Bom 279), is the only reported decision brought to our notice where the Court has expressed the view that a ground of objection that too much land has been allotted to one party in a partition could be entertained by a Civil Court, and that the Civil Court is competent to correct the mistakes of the Collector.

6. In ILR 15 Bom 527, it was held that the Civil Court has no jurisdiction to interfere with the partition made by the Collector under Section 265, where the complaint was that one of the parties in collusion with the Circle Inspector had acquired, allotment of better lands to himself than had been given to others. Birdwood, J. observed in the course of the judgment thus:

'The language of Section 265 is clear. 'The partition,' it says, 'shall be made by the Collector,' and according to a certain law. The power thus given, to the Collector is not in any way made subject to the superintendence of the Civil Court or to revision by a Civil Court, No doubt, the Collector cannot refuse to carry out the decree or order of the Court, but when he has made a partition under the section the Court has no power to examine his work or direct him to make a fresh partition.'

In ILR 42 Bom 689: (AIR 1918 Bom 206), Beaman, J. with whom his learned brother concurred, did not accept the proposition that the Collector is the agent of the Court. He doubted the correctness of the line of reasoning followed in several of the earlier cases that that Court based on the theory of agency. Following the decision in ILR 15 Bom 527, he held that the Civil Court has no jurisdiction to reopen a partition made by the Collector on the complaint that the partition was unequal. In AIR 1945 Mad 336, a Full Bench of the Madras High Court, after overruling its earlier decision in Chinna Seethayya v. Krishnavanamma, ILR 19 Mad 435, answered the question referred thus:

'that the Court which passes a decree has no power to hear objections to the partition made by the Collector or his subordinate or to modify the partition.'

In AIR 1949 Oudh 37, the Court expressed the view that 'Section 54 is intended to secure the fruits of a decree to a party by an independent proceeding which is neither a proceeding in a suit nor an execution proceeding.' In Narasu v. Narayan Krishnaji, 1959 Mys LJ 103: (AIR 1959 Mys 233), where the question for determination was whether an application for transmission of a decree from, the Civil Court to the Collector for effecting partition under Section 54, was an application for execution, a Bench of this Court held that 'in transmitting the decree to the Collector the Court merely performs a ministerial act and the application for transmission of the decree is not an application for its execution.'

Sri Malimath, in support of his contention, relied on an observation of this Court in the course of the judgment that 'the Court which passed the decree must be deemed to have become functus officio after passing the decree.' In taking the view that the application for transmission of a decree to the Collector is not an application for execution, it seems to us that the Bench was inclined to favour the view of the Madras Full Bench.

7. The reasoning of the decisions of the High Court of Bombay in support of the view that the Civil Court which passed a decree for partition has the jurisdiction to correct the errors in the partition effected by the Collector, is that the Collector while exercising his powers under Section 14 performs a ministerial act as an agent of the Court in executing the decree. In none of the said decisions is there any discussion with reference to the provisions of the Code to support the conclusion arrived at beyond the mere assertion that the Collector acts ministerially and as the agent of the Court. No provision is found in the Code empowering the Court to consider the objections to the partition effected by the Collector. No provision of law has been brought to our notice which requires the Collector to report to the Court the action taken by him. As explained by Weston, J. in the Full Bench decision of the Bombay High Court, in Ramabai Govind v. Anant Daji AIR 1945 Bom 338 (FB). the view of the learned Judges of that Court was possibly influenced by the language of Section 225 of the Code of 1859, which corresponds to Section 265 of the Code of 1882 and Section 54 of the present Code. Section 225 was as follows:

'If the decree be for the division of an estate or for the separate possession of a share of an undivided estate paying revenue to Government, the division of the estate or the separation of the share shall be made by the Collector under the orders of the Court according to the rules in force for the partition of an estate paying revenue to Government.'

The words 'under the orders of the Court' appearing in Section 225 were omitted in the subsequent codes. Weston, J. in the Full Bench case cited above observed thus:

'It seems to me with great respect that under the present Code the Collector cannot be said to be a ministerial officer of the Court. No doubt he is bound by the decision of the Court, and, in case of disregard of the terms of the decree, the Court may draw his attention to mistakes committed. I do not think it is essential that such action of the Court should be referable to Section 47 of the Code, as in effect was held in Krishnaji v. Damodar, 5 Bom LR 648. The inherent powers of the Court under Section 151 could be invoked for this purpose, although this was not a case under Section 54 of the Code.'

With great respect to the learned Judge, we fail to see how the inherent powers of the Court can he invoked when the suit is completely disposed of when the Court passed the decree in the manner provided by Order 20, Rule 18(1) and nothing remains to be done by the Court. It is to be remembered, that the Court has not inherent power to do that which is either prohibited or denied by the Code and further, that the inherent power exists only to make such orders as may be necessary for the ends of justice or to prevent an abuse of the process of the Court. Rule 18 of Order XX makes a distinction in regard to the reliefs to be granted in respect to the partition of an estate assessed to land revenue payable to the Government and other categories of properties With respect to an estate, the only decree that a Civil Court is competent to make in a suit for partition ,is a decree declaring the rights of the several parties interested in the property and directing that such, partition shall be made by the Collector, in accordance with the declaration made by the Civil Court, and with the provisions of Section 54. With regard to properties other than estates, the Court may, if a partition cannot be conveniently made without further enquiry pass a preliminary decree declaring the rights of the several parties interested in the properties and give such further directions as may be required. There is no provision for a final decree or for execution of a decree made under Sub-rule (1) of Rule 18 in respect of an estate. So far as the Civil Court is concerned, with the making of the decree declaring the rights of the several parties interested in the property and directing such partition to be made by the Collector, the suit is completely disposed of and nothing remains to be done thereafter by the Court.

8. When a decree is made by the Civil Court for partition of an estate, it is the statutory duty of the Collector to make the partition of the estate in accordance with law for the time being in force relating to the partition or the separate possession of such estate, and deliver possession to the parties entitled thereto. This is how Section 54 of the Code reads:

'Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any Gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of share of such estates.'

The powers and functions of the Collector under Section 54 are analogous to tie powers and functions of the Civil Court in the final decree proceedings for partition of properties other than an estate. The Collector in effecting the partition and separating the shares performs a quasi-judicial function and not a ministerial duty. Ha is bound to hear the parties and consider their objections to the proposed partition scheme before making it final. If he accepts or rejects the objections of any of the parties to the partition scheme, he is bound to give reasons. His final order effecting the partition and separating the shares is subject to correction by the higher authorities on appeal under the provisions of the Bombay Land Revenue Code, or other analogous law. There is also final judicial review by this Court under Article 227 of the Constitution oi India. When an authority like the Collector is given exclusive jurisdiction by Section 54 of the Code to effect partition of an estate in accordance with the rights of the parties declared thereto by the Civil Court, and in accordance with the law in force relating to the partition or separate possession of. shares of such estates, the Collector does not perform a ministerial act, nor does he function as an agent of the Court in executing the decree. With great respect to the learned judges of the High Court of Bombay, we are unable to accept their view in the face of the Clear provisions of the Code. Under Section 54 the Collector is constituted an independent tribunal for effecting partition of an estate and the proceedings before him are neither proceedings in a suit nor in an execution, but are independent proceedings before a tribunal not subordinate in any manner to the Court passing the decree. The Collector, in our opinion, performs, a statutory duty imposed by law and while exercising his statutory powers, he is bound to give effect to the terms of the decree and he cannot act in disregard of its terms. If he acts in contravention of the law or disregards the terms of the decree, his action could always be corrected by appeal or revision to the higher authorities in the manner stated above.

9. We hold therefore that the Civil Court has no jurisdiction to consider the objections to the partition effected by the Collector either on the ground that the Collector has contravened the terms of the decree or transgressed the law relating to partition or any other ground of objection.

10. In the result, the appeal fails and is dismissed with costs.

11. Appeal dismissed.


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