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Shivaramaiah Vs. Mallikarjunaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberI.A. No. 1 in First Appeal No. 52 of 1970
Judge
Reported inAIR1978Kant76
ActsCode of Civil Procedure (CPC), 1908 - Sections 54 and 151 - Order 20, Rule 18, 18(1) and 18(2)
AppellantShivaramaiah
RespondentMallikarjunaiah and ors.
Appellant AdvocateV. Krishnamurthy, Adv.
Respondent AdvocateNagaraj, Adv. for ;R.S. Mahendra, Adv.
Excerpt:
.....expeditiously. - we should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. we should however like to make it clear that this can only be done so long as the final decree has not been passed. same thing can be said with equal justification in regard to decrees made under order 20 rule 18 (1), as well. hirabai rajaram tiwari air1957bom59 .the decree dealt with by the high court of bombay was a composite decree like the present one in respect of the revenue payable properties as well as non-revenue payable properties falling both under order 20 rule 18 (1) and order 20 rule 18 (2) of the c. that is another reason which..........that he being the surviving plaintiff should be put in possession of the l/4th share in the suit properties which had been allotted under the decree of the court to him and the deceased second plaintiff together. in support of the application, an affidavit has been filed by nanjamari, the husband of the deceased second plaintiff, in which he appears to have stated that having regard to the fact that he resides at a distant place he has no objection for delivery of possession of the entire 1/4th share to the first plaintiff. but, during the course a the argument, learned counsel for the first plaintiff had to concede that this application is misconceived and is not maintainable in this court and that the proper course to be adopted by the parties is to file an appropriate.....
Judgment:

V.S. Malimath, J.

1. This application is by the original first plaintiff made under Section 151 of the Civil P. C. praying for a direction that he be put in possession of 1/4th share in the suit schedule properties after partition by metes and bounds.

2. The undisputed facts of the case are that the applicant in I. A. No. I Mallikarjunaiah and his sister Sarojamma instituted original suit No. 7 of 1965 for partition and possession of the suit schedule properties. The court of first instance made a decree declaring that the first plaintiff is entitled to 2/9th share and the second plaintiff is entitled to l/9th share in the suit schedule properties. The said decree was challenged by Shivaramiah, defendant 2 in R. F. A. No. 52 of 1970 in this Court. This Court partly allowed the appeal and modified the decree made by the court of first instance. This Court declared that the two plaintiffs together are entitled to 1/4th share; that defendant 1 is entitled to l/4th share; and that defendant 2 is entitled to half share in the suit schedule properties. The suit schedule consists of the properties paying land revenue as also other properties. As regards properties assessed to payment of land revenue to the Government, the decree was ser to the Deputy Commissioner for effecting partition in accordance with the decree made by the Court as required by Order 20 Rule 18 (1) read with Section 54 of the Civil P. C. Before the Deputy Commissioner could effect the partition in accordance with the decree of the civil court, the second plaintiff died leaving behind her husband Nanjamari and a minor son Lokesh.

3. It was explained to us by the learned counsel for the applicant in I. A. No. 1 that when the Deputy Commissioner was apprised of the death of the second plaintiff, he felt that it will not be possible for him to effect partition by metes and bounds in accordance with the decree made by the Civil Court in the suit. The learned counsel also submitted that the Deputy Commissioner, therefore, has written a letter to the Registrar of this Court seeking a clarification on the question as to who should be considered as the legal heirs of Smt. Sarojamma, the deceased original second plaintiff. It is in this background that the first plaintiff filed I. A. No. I in R. F. A. No. 52 of 1970 for a direction that he being the surviving plaintiff should be put in possession of the l/4th share in the suit properties which had been allotted under the decree of the court to him and the deceased second plaintiff together. In support of the application, an affidavit has been filed by Nanjamari, the husband of the deceased second plaintiff, in which he appears to have stated that having regard to the fact that he resides at a distant place he has no objection for delivery of possession of the entire 1/4th share to the first plaintiff. But, during the course a the argument, learned counsel for the first plaintiff had to concede that this application is misconceived and is not maintainable in this court and that the proper course to be adopted by the parties is to file an appropriate application in the court of first instance for bringing the legal representatives of the deceased second plaintiff on record and seeking a further preliminary decree in favour of the legal representatives of the original second plaintiff who have become entitled to succeed to her share in the suit schedule properties. As we have heard, the learned counsel for both the parties at length and as we iind that there is no direct authority on the question involved, we consider it appropriate to deal with the question of appropriate steps that can be taken and the forum which can be approached for that purpose.

4. The undisputed facts are that the decree was made by the court of first instance declaring the respective shares of the parties to the suit in the suit schedule properties. The suit schedule properties consisted of the properties assessed to land revenue as also other properties. The decree was modified by the appellate court by modifying the shares to which the parties are entitled to. Admittedly, no final decree has been passed so far as items 16 and 17 in Schedule 'A' are concerned which are not the properties liable to pay land revenue to the State Government. So far as the other properties are concerned, which are assessed to land revenue, the decree was sent to the Deputy Commissioner for effecting partition by metes and bounds. But, before the Deputy Commissioner could effect partition by metes and bounds, the second plaintiff who has been allotted 1/4th share along with the first plaintiff died leaving behind her the two heirs referred to above. This is therefore a case of devolution of interest after declaration of the rights of the parties to the suit for partition and before the partition by metes and bounds was completed by the Deputy Commissioner by taking appropriate steps as required by Section 54 C. P. C.

5. The question for consideration is as to whether in these circumstances the parties who claim that they have become entitled to certain shares as a result of the death of one of the parties to the suit are entitled to approach the Deputy Commissioner who is seized of the matter or whether they are entitled to approach the civil court for the purpose of drawing up an appropriate preliminary decree in favour of the persons who claimed that there has been devolution of interest in their favour after the declaration of the rights of the parties is made by the civil court.

6. Sri V. Krishnarmurthy, learned counsel for original defendant-2, submitted that with a view to avoid multiplicity of suits and to see that the parties reap the benefits of the decree, it is more appropriate that the civil court itself should be approached for the purpose of drawing up further preliminary decree consequent upon devolution of interest having taken place after the declaration of the rights of the parties and before they are put in possession of the respective shares by the Deputy Commissioner functioning under Section 54 of C. P. C. For this purpose he sought sustenance for his argument by relying on the decision of the Supreme Court in Phoolchand v. Gopal Lal : [1967]3SCR153 . In particular, Sri V. Krish-namurthy, relied on the observations made by the Supreme Court in paragraph 7 of the judgment which reads as follows:--

'We are of opinion that there is nothing in the Civil P. C. which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Civil P. C. against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Civil P. C. does not contemplate such a possibility. In any case if two views are possible--and obviously this is so because the High courts have differed on the question--we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the Court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particulary in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances of this case it was open to the Court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided, the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant.'

It is no doubt true that though the observations of the Supreme Court referred to above generally govern such situations arising in a partition suit, it appears, what the Supreme Court dealt with is a situation arising in respect of a partition decree made under Order 20 Rule 18 (2) of the C. P. C. in respect of properties other than properties assessed to land revenue. That appears to be the position having regard to the fact that after the preliminary decree was passed by the civil court a Commissioner was appointed to effect partition as stated in the first para of the judgment. Though the observations of the Supreme Court relied upon by Shri Krishnamurthy, govern situations arising in respect of preliminary decrees falling under Order 20 Rule 18 (2) of the C. P. C. it was maintained by the learned counsel that there is no justification why the said principles should not be extended to similar situations arising in respect of decrees made under Order 20 Rule 18 (1) of the C. P. C. i. e., decrees relating to the estates assessed to payment of land revenue to the Government. If the scheme of the two provisions under Order 20 Rule 18 (1) and under Order 20 Rule 18 (2) is analysed, it will be clear that the essential nature and character of both the types of the decrees is the same. Though the decree passed under Order 20, Rule 18 (1) is not described as a preliminary decree, whereas, the decree passed under Order 20 Rule 18 (2) is a preliminary decree, in our opinion, so far as the essential character of the two decrees is concerned, there is no real difference. The decrees falling under both the clauses of Order 20 Rule 18 merely declare the rights of the parties in the two types of properties. The decrees passed under both the clauses contemplate partition or separation to be made to enable the parties to realise the fruits of the decree. This is done by passing a final decree if the decree for partition is made under Order 20 Rule 18 (2) in respect of properties other than those in respect of which revenue is payable to the Government. The same object is achieved in respect of the partition decree made under Order 20 Rule 18 (1), by sending the said decree to the Deputy Commissioner for effecting partition in respect of the estate assessed to payment of the land revenue to the Government. There is no bar for making more than one preliminary decree under Order 20 Rule 18 (2) of the C. P. C. We do not find any such bar for passing more than one decree under Order 20 Rule 18 (1) of the C. P. C. either. One of the reasons given by the Supreme Court is that if there is need for alteration of the shares before the final decree is made there is no reason why the same should not be done by passing appropriate further preliminary decree and that there is no reason why the parties should be driven to a fresh suit. Same thing can be said with equal justification in regard to decrees made under Order 20 Rule 18 (1), as well. The only clarification that is necessary to be made is that whereas steps as indicated by the Supreme Court in paragraph 7 of its judgment can be taken only so long as final decree is not passed if the partition decree is made under Order 20 Rule 18 (2) such steps can be taken in respect of decree made under Order 20 Rule 18 (1) of the C. P. C. So long as the Deputy Commissioner has not effected partition as required by Section 54 of the C. P. C.

7. It is necessary to point out that the Supreme Court in Para 7 of its judgment approved the view taken by the High Court of Bombay in Parashuram Rajaram Tiwari v. Hirabai Rajaram Tiwari : AIR1957Bom59 . The decree dealt with by the High Court of Bombay was a composite decree like the present one in respect of the revenue payable properties as well as non-revenue payable properties falling both under Order 20 Rule 18 (1) and Order 20 Rule 18 (2) of the C. P. C. That is another reason which persuades us to take the view that the principles laid down by the Supreme Court in paragraph 7 of its judgment can be followed in respect of the decrees falling under Order 20 Rule 18 (1) as well. We hold that if after the decree is made under Order 20 Rule 18 (1) of the C. P. C. and before the Deputy Commissioner effects partition, any party who has been allotted a share dies, necessary adjustment of the shares and the resolution of disputes arising in that behalf can be made by the Civil Court. The Civil Court can make appropriate adjustment and draw a further preliminary decree modifying the shares of the parties consequent upon the devolution of interest resulting from the death of one of the parties to the suit. It is, however, necessary to emphasise that this can only be done so long as the Deputy Commissioner has not completed the process of effecting partition in accordance with the decree of the Civil Court. If the shares get altered as a result of the death of any of the parties after the Deputy Commissioner completes the process of partition, it is obvious that the Civil Court which made the decree under Order 20 Rule 18 of the C. P. C. cannot be approached for the purpose of the adjustment of the shares of the parties in the very same proceeding. In such a case, the parties may have to seek relief in a separate suit.

8. Before concluding, we may refer to two decisions of this Court. In Narasu v. Narayan Krishnaji (AIR 1959 Mys 233), a Division Bench of this Court has taken the view that a decree made under Order 20 Rule 18 (1) cannot be regarded as a preliminary decree. That was a case in which the question for consideration was as to whether any application is contemplated for sending the decree made under Order 20 Rule 18 (1) of the C. P. C. to the Deputy Commissioner and if so whether any limitation is prescribed for it. The Division Bench held that no such application is contemplated and that the question of limitation does not arise for reminding the court of its ministerial duty of sending the papers to the Deputy Commissioner. It is in that context that it was observed that the decree under Order 20 Rule 18 (1) is so far as Civil Courts are concerned final though the partition may remain to be effected by the Deputy Commissioner. Having regard to the scheme of the Order 20 Rule 18, we have already pointed out that the real nature of the decree is the same whether it is made under Order 20 Rule 18 (1) or under Order 20 Rule 18 (2). The other decision is of the Full Bench in Ganpatrao Raojirao Desai v. Balavant Krishnaji Desai (1965-2 Mys LJ 768). The full Bench has held that after a decree is made under Order 20 Rule 18 (1) it becomes functus officio and that it has no power to correct any errors that may be committed by the Deputy Commissioner in the matter of giving effect to the decree under Order 20 Rule 18 (1). What has been laid down by the Full Bench is that the Civil Court after it passes the decree has not been clothed with the power of correcting mistakes that may be committed by the Deputy Commissioner functioning under Section 54 of the C. P. C. It is necessary to note that the Full Bench has not laid down that the Civil Court has no power to modify or review the decree made by it under Order 20 Rule 18 (1) of the C. P. C. It is impossible to take the view that the Civil Court will not have the power to amend its own decree or to make a further preliminary decree or to review its own decree. The view taken by the Full Bench in the aforesaid case therefore, does not, in any way, conflict with the view which we have taken in this case.

9. The only other question that survives for consideration is as to whether the application for adjustment of the shares consequent upon the death of the second plaintiff in this case, can be made to this court or to the court of first instance. It is clear from the facts of Phoolchand's case : [1967]3SCR153 that the decree for partition ultimately stood merged in the decree made by the Mahkma Khas (Privy Council) of the State of Jaipur. But, before the final decree could be made some of the parties died and an application for adjustment of the shares was made to the court of first instance and not to the appellate court or the court of Mahkma Khas. It is the decision of the court of first instance on such an application that was challenged in the High Court which ultimately came before the Supreme Court. It is clear from these facts that though the preliminary decrees stood merged in the decree of the superior court, the application was made to the court of firs' instance. It is no doubt true that this question was not directly debated before the Supreme Court. But, it appears to us, having regard to the view taken by the Supreme Court in para 7 of its Judgment, the proper court to which such an application can be made is the court of first instance and not the appellate court even if the decree of the court of first instance was modified by the appellate court. The reason for this view of ours is that the Court in such a case is not called upon to review the decree or to amend the decree. It is only the court which made the decree that can amend or review its own decree. But, in a case like this, what is prayed for is the passing of a further decree in the light of the events that have taken place subsequent to the passing of the decree under Order 20 Rule 18 (1) of the C. P. C. Therefore, when the court is approached with such an application, it is not asked to sit in judgment over the decree already made under Order 20 Rule 18. What it is called upon to do is to adjust the right of the parties in view of the subsequent events that have taken place. We, therefore, see no reason why the court of first instance cannot be approached with such an application. Besides, the court of first instance will be in a better position to deal with the case as it may have to take evidence if the circumstances of the case so demand. An application for a further decree adjusting the rights of the parties consequent upon the death of the second plaintiff can be filed in the court of first instance and not in this court. As the learned counsel for the applicant in I. A. No. 1 submitted that he withdraws the application I. A. No. 1 and that he proposes to file an appropriate application in the court of first instance in the light of the observations made in this order, it is enough to dismiss the application I. A. No. I as withdrawn. No costs.

10. Application dismissed.


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