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Sivalinga Pathar Vs. Narayani Ammal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1946Mad151; (1945)2MLJ439
AppellantSivalinga Pathar
RespondentNarayani Ammal
Cases ReferredAppa Trimbak Despande v. Waman Govind Despande I.L.R.
Excerpt:
- - the court passed, on the basis of the admissions contained in the written statement as well as on the representation made by the first defendant's advocate, an interim decree as prayed for on the application under order xii, rule 6. a commissioner was appointed in due course for the division of the items and ultimately an order was passed on the 14th october, 1944, in the following terms--it is agreed that subject to re-allotment when the final decree is being passed, the properties (houses and shops) may be divided as follows: that also seems to me to be a strong ground against the petitioner......it was made on the understanding that it did not debar any re-allotment of the properties at the final decree stage if such a re-allotment was considered necessary or desirable in order to make provisions for discharge of family debts or payment of maintenance dues if such debts or maintenance claim are found to be really payable from the family properties. the court passed, on the basis of the admissions contained in the written statement as well as on the representation made by the first defendant's advocate, an interim decree as prayed for on the application under order xii, rule 6. a commissioner was appointed in due course for the division of the items and ultimately an order was passed on the 14th october, 1944, in the following terms--it is agreed that subject to re-allotment.....
Judgment:

Yahya Ali, J.

1. There were three brothers, Sivalinga, Ekambara and Chocka-linga. The last died about 12 years ago. Ekambara died on the 16th July, 1940, issueless leaving him surviving his widow. Sivalinga was the survivor. After the death of her husband, Ekambara's widow filed O.S. No. 8 of 1944 in the Court of the Subordinate Judge of Kumbakonam against Sivalinga as the first defendant and Chockalinga's widow as the second defendant. She claimed inter alia a share in the properties other than agricultural lands by virtue of the provisions of the Hindu Women's Rights to Property Act, 1937. In his written statement, me first defendant while contesting the suit on other matters stated with reference to her claim to the division of houses and moveable properties that he had no objection to the partition of the divisible items comprised under those schedules and to the separate possession and enjoyment of a moiety of the said items by the plaintiff until her death. On the basis of this admission the plaintiff applied under Order XII, Rule 6 for a decree being passed in respect of A schedule properties and notice of the application was given. The first defendant's advocate appeared and stated that the first defendant had no objection to an interim decree for partition as prayed for, provided it was made on the understanding that it did not debar any re-allotment of the properties at the final decree stage if such a re-allotment was considered necessary or desirable in order to make provisions for discharge of family debts or payment of maintenance dues if such debts or maintenance claim are found to be really payable from the family properties. The Court passed, on the basis of the admissions contained in the written statement as well as on the representation made by the first defendant's advocate, an interim decree as prayed for on the application under Order XII, Rule 6. A commissioner was appointed in due course for the division of the items and ultimately an order was passed on the 14th October, 1944, in the following terms--

It is agreed that subject to re-allotment when the final decree is being passed, the properties (houses and shops) may be divided as follows: Plaintiff to take items 2 and 5 to 9 and first defendant to take items 1, 4 and 10 and to give to second defendant the portion suggested by commissioner in item 1 for her residence. Item 3 is not at present available for division as it is in the possession of an alienee.

2. A decree was also drawn up on the same date in accordance with this order.

3. In the meantime the question as to the intra vires of the Hindu Women's Rights to Property Act of 1937 was being considered by the Courts. On a reference made by the Governor-General to the Federal Court, that Court held in In the matter of The Hindu Women's Rights to Property Act1, that the Act was intra vires. The matter came up before this Court in Umayal Achi. v. Lakshmi Achi (1941) 2 M.L.J. 12 : I.L.R. 1941 Kar. I48:4 F.L.J. 1. Following the ruling of the Federal Court it was held that the Act was intra vires the powers of the Central Legislature except with regard to the provisions affecting agricultural lands. This decision went up in appeal to the Federal Court and that Court by a majority in Umayal Achi v. Lakshmi Achi (1945) 1 M.L.J. 108: 1945 F.L.J. 8 upheld the decree of this Court. One of the three Judges of the Federal Court however took a contrary view. Apparently in view of the circumstance, the first defendant felt it necessary to amend his written statement so as to have the benefit of the opposite contention in case, on a further appeal to the Judicial Committee, the view should prevail that the said Act was not within the law making authority of the Central Legislature. The lower Court refused to permit the first defendant to amend his written statement and the first defendant seeks by this petition to revise the said order.

4. The question is whether on account of these considerations and in the circumstances of the case, it was open to the first defendant to amend his written statement so as to embody contentions which were directly opposite to what he had urged in his original written statement. Earned Counsel for the petitioner has raised two contentions in this connection. The first is that the decree passed in this case which is called the interim decree is neither in form nor in substance a decree within the meaning of Section 2(2) of the Civil Procedure Code and that it is not conclusive even so far as the Subordinate Judge is concerned as under the terms of the decree itself, it was open to the parties and to the Court to make further re-allotments. The second contention is that even if it is an interim decree, it is not in the nature of a preliminary decree as contemplated in Section 97 of the Civil Procedure Code and that consequently there is no bar to the petitioner raising the question of the validity of the so-called interim decree in an appeal against the decree that might ultimately be passed by the Court. He draws attention to Clause (2) of Order XX, Rule 18, to show that a decree of this kind could not properly be treated as a preliminary decree such as would fall within the ambit of Section 97. He argues that having regard to the language of Section 105, it would be open to him not to prefer an appeal against the interim decree but to wait until the final decree was passed and to object to this decree in a ground of objection raised in the memorandum of appeal to be filed therein.

5. I am unable to accept any of these contentions. Clause (in) of Order XII, Rule 6 says that whenever an order or judgment is pronounced under the provisions of this rule, a decree may be drawn up in accordance with such order or judgment and bearing the same date as the day on which the order or judgment was pronounced. A decree was accordingly passed in the present case. The rule does seem to contemplate an order having the status of a decree being passed on an application made under Order XII, Rule 6. The contention that the reservation made in the said decree about its being subject to further re-allotments at the stage of the final decree to my mind does not take away from it the effect or character of a decree. A decree may be either preliminary or final and may be partly preliminary and partly final. In the present case, the decree does not refer to either schedule B or schedule C. It covers all items in Schedule A except the third item which being in the hands of an alienee, was not dealt with. Out of the remaining nine items, six were allotted to the plaintiff and three to the first defendant. One of the three items given to the first defendant consisted of the family house being item 1 and the decree provided that the second defendant Chockalinga's widow was entitled to reside in the portion thereof which was marked out by the commissioner. Any re-allotment that could possibly be made thereafter at the final decree stage could only be with reference to those nine items. There could be no further variation of this decree either by consent of parties or by order of Court, so far as the conceding to the plaintiff of a half share in the divisible properties went. Therefore the argument that the decree in question does not amount to a decree because of the existence of this reservation therein has no force. It will perhaps be right to call this a decree partly preliminary and partly final because so far as it affects the particular items in question, it is in the nature of a final decree subject only to its being varied if necessary by way of re-allotment of the items by consent of the parties. Reference was made for the petitioner to Appa Trimbak Despande v. Waman Govind Despande I.L.R. (1942) Bom. 75, but in that case there had actually been an alteration in the case law which had, as their Lordships of the Privy Council pointed out, produced an embarrassing situation for the appellants. In the present case, however, no such change in the case law has yet occurred and the petitioner is only seeking by way of abundant caution to provide for a relief which he might be able to urge in case there should be an appeal to the Privy Council and in the event of the Privy Council taking a view conformable to his contentions. That to my mind is no ground for allowing an amendment when the admissions made by him have gone beyond the stage of a decree duly passed.

6. The learned advocate for the respondent has drawn my attention to Clause (Hi) of Section 96 of the Civil Procedure Code under which no appeal can be brought against a consent decree. That also seems to me to be a strong ground against the petitioner. The order of the learned Subordinate Judge was right and does not call for any interference.

7. The civil revision petition is dismissed with costs.


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