Kerala High Court
Brenda Barbara Francis, Rep. By P/A ... vs Adrian Miranda on 1 March, 2023
Bench: P.Somarajan, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
Wednesday, the 1st day of March 2023 / 10th Phalguna, 1944
IA.NO.1/2023 IN RFA NO. 353 OF 2016
OS 34/1999 OF PRINCIPAL SUB COURT , THIRUVANANTHAPURAM
PETITIONERS/APPELLANTS:
1. BRENDA BARBARA FRANCIS,(DEAD) NOW REP. BY MICHEAL N.S.FRANCIS, R/O
100 CARNWITH DRIVE, WEST BROOKLIN, ONTARIO, LIM OA6, CANADA.
2. MARISSA THAYURMAN, 15/1, EAST MARREDPALLY, SECUNDERABAD-500026.
3. GERARD GABRIEL 15/1, EAST MARREDPALLY, SECUNDERABAD-500026.
4. KAREN GABRIEL 15/1, EAST MARREDPALLY, SECUNDERABAD-500026.
5. DORATHY MIRANDA, SAGAR PLAZA, C.H.C. OPP. MALWANI CHURCH, MALAD
WEST-1, MUMBAI-400095.
6. NIGEL MIRANDA 10, CARDINAL GRACIS BUILDING, 3RD FLOOR, COLABA CAUSE
WAY, OPP. LEO POLE RESTAURANT, COLABA, MUMBAI-400 039.
7. KIM MIRANDA, 11029, 82ND AVENU, DELTA, BC, B4C2B3, CANADA.
8. ALTHEA AYESHA GOYAL, 11029, 82ND AVE, DELTA BC, B4C2B3, CANADA.
(ALL APPELLANT ARE REPRESENTED BY THEIR POWER OF ATTORNEY G.ANAND, 35
DEFENCE COLONY , CHENNAI -600 032)
RESPONDENTS/DEFENDANTS:
1. ADRIAN MIRANDA "HALCYON" PAKKATTUVILA, KUNNUKUZHI,
THIRUVANANTHAPURAM-695 035.
2. VINITHA PENKAR(DEAD) NOW REP BY SONS(1)ADARSH JOSHUA PENKAR(2) ARPAN
JUDE PENKAR & (3) APOORVA BASIL PENKAR, ALL R/O NO 357 SILVER OAKS
BUNGLOW (NEAR GOVERNMENT MINT) CHINNA CHERLAPPAY, SECUNDERABAD - 500
051.
3. GERALDINE JACOB 8, BEAVERTON ROAD NORTH, RICHMOOD HILL, ONTARIO,
CANADA. REP. BY POA ALBERT MANUEL THOMAS, "DEOGRATIAS", F3A,
POTHUJANAM ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.
4. RAMAKRISHNAPILLAI, KAKKANAD VEEDU, ULLOOR, THIRUVANANTHAPURAM SCRIBE
OF MALAYALAM WILL OR TESTATOR/ MOTHER (DEAD)HENCE NAME BE DELETED
5. ADARSH JOSHUA PENKAR, R/O NO 357 SILVER OAKS BUNGLOW (NEAR
GOVERNMENT MINT) CHINNA CHERLAPPAY, SECUNDERABAD - 500 051.
6. ARPAN JUDE PENKAR,R/O NO 357 SILVER OAKS BUNGLOW (NEAR GOVERNMENT
MINT) CHINNA CHERLAPPAY, SECUNDERABAD - 500 051.
7. APOORVA BASIL PENKAR,R/O NO 357 SILVER OAKS BUNGLOW (NEAR GOVERNMENT
MINT) CHINNA CHERLAPPAY, SECUNDERABAD - 500 051.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to pass appropriate
orders to draw the decree on the engrossed stamp paper by the Registry of
this Honourable Court.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof,and this court's judgment dated
12.04.2017 and this court's order dated 30.01.2023 in I.A.No.3/2018 and
upon hearing the arguments of SRI.D.SREEKUMAR, Advocate for the
petitioners and of SRI.JOSH RAJAN (NALANCHIRA), SRI.SABU S.KALLARAMOOLA
Advocates for R1 to R3, the court passed the following:
CR
P.SOMARAJAN & M.R.ANITHA, JJ.
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I.A.No.1/2023 in R.F.A.No.353 of 2016
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Dated this the 01st day of March, 2023
O R D E R
Somarajan, J.
The question came up for consideration before us by way of I.A.No.1/2023 is with respect to the permissibility of this Court (the first appellate court) to engross a final decree for partition on required stamp paper or whether this court can exercise jurisdiction for that purpose.
2. The procedure to be adopted for engrossing a decree on stamp paper is dealt under the provisions of Civil Rules of Practice, Kerala. The form of decree that can be drawn is made mentioned under Rule 182 in Chapter V of the said Rules. But in the case of final decree for partition, in addition to the requirement under Rule 182, the mandate under Section 235(1) and (2) has to be complied with in so far as it is applicable either to movable or immovable properties. The plan prepared at the I.A.No.1/2023 in RFA No.353/2016 2 final decree stage and accepted by the court shall be appended to the final decree, besides the schedule of properties. The question of engrossing the final decree would arise only after attaining finality and conclusiveness to a decree drawn either by the trial court or by the first appellate court or by the second appellate court as the case may be. The expression "decree" is defined under Section 2(2) of the Code of Civil Procedure as follows:-
"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 I.A.No.1/2023 in RFA No.353/2016 3 completely disposes of the suit. It may be partly preliminary and partly final."
3. Going by the first limb of the said definition, a decree or a final decree would stand for the "formal expression of an adjudication which conclusively determines the right of parties in any of the controversy in the suit". Necessarily, a final decree in a partition suit should be understood as the formal expression of adjudication by the court determining the rights of parties and disposing the suit completely by such adjudication. The definition of 'judgment' under Section 2(9) of the Code of Civil Procedure means the statement given by the Judge on the grounds of a decree. A conjoint reading of these two definitions would show that the decree in fact stands for the operative portion of the judgment, which determines the right of parties. There may not be any change in the legal position regarding what would constitute a decree as defined under Section 2(2) of C.P.C. either at the trial stage or at the first appellate stage or even at the second appellate stage. By virtue of the principle of merger, the decree passed by the trial court will stand merged in the decree passed by I.A.No.1/2023 in RFA No.353/2016 4 the first appellate court or the second appellate court as the case may be and the decree can be executed by the execution court and not by the first appellate court or the second appellate court by virtue of provisions contained under Order XXI C.P.C irrespective of whether it was passed by the first appellate court or the second appellate court. The very same principle is applicable to a decree of partition of immovable property when it requires a documentation showing title, interest or the right thereof as mandated under the provisions of the Registration Act. It is for that purpose, the final decree for partition has to be engrossed on required stamp paper, as if it were a partition effected by the parties inter se. This being the legal position, once the decree has attained finality, it will go back to the trial court so as to comply with the requirement for engrossing the decree on stamp paper so as to make it a document of title, interest or right or severance thereof as the case may be. The subsequent provision, Rule 237 of Civil Rules of Practice says that the decree should be engrossed on non-judicial stamp paper of requisite value with a supplement that it shall be retained by the court I.A.No.1/2023 in RFA No.353/2016 5 and shall form part of the record. The expression 'by the court' made mentioned therein stands for the trial court. Sub-Rule (2) and (3) says that a copy of final decree in a partition suit shall be sent to the Sub-Registrar within whose jurisdiction, the immovable property situate and if it is within the jurisdiction of more than one, shall send copies to all such Sub-Registrar.
4. Rule 187 deals with the manner in which the value of stamp paper can be assessed. It says that the stamp duty levied must be in accordance with the directions under that provision i.e. direction Nos. 1 to 3, which states as follows:
"187. Final decree in partition suits - Final decrees in partition suits shall be prepared and stamp duty levied in accordance with the following directions:
1) The value of the shares shall be the value as assessed by the Commissioner and accepted by the Court.
2) The stamp duty leviable shall be according to the Stamp Act in force at the time of the passing of the final decree.
3) The Court shall insist on the
Commissioner filing a schedule showing
I.A.No.1/2023 in RFA No.353/2016 6
the valuation of the shares for the
purpose of stamp duty."
5. This would make the legal position clear that there are lot of differences in 'drawing' a decree and 'engrossing' a decree. The appellate jurisdiction either by way of first appeal or second appeal will stand terminated on disposal of the appeal by drawing a decree.
The power to engross a decree is with the trial court after the culmination of the proceedings and attainment of finality to the decree.
6. Yet another issue also came to our notice pertaining to the authority given to the court to retain the original of the decree so engrossed with the court and that it would form part of the record. The final decree which has been engrossed on stamp paper would be the document of right,title or interest after its severance with the other co-owners and it has to be kept by such person in whose favour it was drawn and engrossed. Hence, the application of Rule 237 of Civil Rules of Practice has to be limited to the extent of keeping a copy of the decree engrossed and the original of the decree engrossed should be given to such person on I.A.No.1/2023 in RFA No.353/2016 7 his application.
Hence, the parties are permitted to agitate the same before the trial court. Without prejudice to the said right, the I.A. will stand disposed of accordingly.
Sd/-
P.SOMARAJAN JUDGE Sd/-
M.R.ANITHA JUDGE sv 01-03-2023 /True Copy/ Assistant Registrar