Orissa High Court
Debendra Jena And Ors. vs Umakanta Jena And Ors. on 18 April, 1986
Equivalent citations: AIR1988ORI11, AIR 1988 ORISSA 11, (1987) 64 CUT LT 243
ORDER K.P. Mohapatra, J.
1. The point for consideration in this civil revision is whether lands purchased by co-sharers from other co-sharers should be allotted to their share while passing the final decree in a suit for partition.
2. In order to appreciate the facts, it is necessary to produce the admitted genealogy.
Genealogy
Siba Jena
_________________|____________________
| | | |
Hari Brahma Bishnu Ganesh
__________|______ | | _______|_________
| | | | | | | |
Rama Shyam Umakanta Thakar | Jhatu Banamali Kali
| (D.9) (D.10) | | (D.12) (D.13) |
Wife Pika (D.4) | Widow
Mokhada (wife) | Mukhada
______|_________________ | (D.16)
| | | __________|_______ |
Gouri Nityananda Maheswar | | |
(D.5) (D.6) (D.7) Gadei Khira (D.3) |
___________|___ ______|_____ |
| | | | |
Laxman Hadibandhu Debendra Barendra |
| (P.1) (D.11) (D.1) (D.2) |
______|__________ ___________________|________
| | | |
Sanyasi Gandu Gobinda Panku
(P.2) (P.3) (D.14) (D.15)
The plaintiffs obtained a preliminary decree for partition in which the shares of different branches were defined. They filed a petition to make the decree final and stated therein that defendant No. 4, representing a branch having died, her grand-daughter Smt. Chudamani Jena (defendant No. 3 of the final decree petition) sold 1.13 2/3 acres of land out of khata Nos. 94 and 102 of mouza-Kumbhari in favour of plaintiffs 1 to 3 and defendant No. 2 by virtue of a sale deed dt. 14-11-1979 and so the aforesaid extent of land should be allotted to their share while passing the final decree.
3. Defedants 5 to 10 in their counter stated that Brahma, father-in-law of defendant No. 4 had sold his share of the ancestral land in favour of Rama, father of defendants 5, 6 and 7 and husband of defendant No. 8 and defendants 9 and 10 by virtue of a sale deed dt. 20-6-1932 and so the share of Brahma should be allotted to them in addition to their usual defined shares in the final decree. They disputed that Smt. Chudamani Jena is related to their family and so she had no interest to alienate any land of the share of Brahma in favour of the plaintiffs and defendant No. 2.
4. From the aforesaid averments it appears that the share of Brahma in the joint family property is now in dispute. Whereas, the plaintiffs and defendant No. 2 claim the share on the strength of a sale deed said to have been executed on 14-11-1979 by Smt. Chudamani Jena, defendants 5 to 10 have stated their claim in respect thereof by virtue of a sale deed dt. 20-6-1932. Confronted with this position, learned Subordinate Judge, Balasore refused to entertain the claims on the ground that in the final decree proceeding a new case set up by the parties cannot be entertained. Therefore, he refused to allocate the share of the branch of Brahma in the joint family property in favour of the plaintiffs.
5. The plaintiffs and defendant No. 2 acquired the share of Brahma on 14-11-1979 after the preliminary decree was passed. Defendants 5 to 10, however, had acquired the share of Brahma on 20-6-1932. The sale deeds were not produced in the final decree proceeding and so they are not before this Court. It is, therefore, not possible to ascertain what specific property was purchased by the plaintiffs and defendant No. 2 and defendants 5 to 10. On verification of the sale deeds it may be possible to know whether the same property alienated earlier on 20-6-1932 in favour of defendants 5 to 10 was subsequently alienated in favour of the plaintiffs and defendant No. 2 on 14-11-1979 or out of the share of Brahma, the sale deeds covered different parcels of land. The alienees' share on partition has to be determined with reference to the alienating coparceners' share on the date of alienation. The share has to be worked out by taking the properties existing on the date of partition. The alienee of a specific property or of the undivided interest of a coparcener in such property has an equitable right to have that property or his alinor's share in that property as the case be assigned to him if it could be done without injustice to the other coparceners. But there may be equities between the coparceners or liabilities attaching to the alienor's share which may render it inequitable or impracticable to do so. It is, therefore, necessary to discuss the scope of a final decree proceeding under Order 20, Rule 18 of the Code of Civil Procedure ('Code' for short). In AIR 1961 Orissa 140, Jagannath Samantra v. Sudarsan Das, Barman J. examined the same and held as follows : --
"The point, accordingly, has to be decided on the basic principles, on which preliminary and final decrees are passed in a partition suit. Order 20, Rule 18, Civil P.C., providing for decree in suit for partition of property or separate possession of a share therein, lays down that the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree, declaring the rights of the several parties, interested in the property, and giving such further directions, as may be required.
Thus, a partition suit, -- in which a preliminary decree has been passed, -- is still a pending suit, and the rights of the parties, who are added after the preliminary decree, have to be adjusted at the time of the final decree. This makes it clear, that, at the stage of final decree, when the rights of the parties have to be declared, opportunities should be given to the legal representatives of the deceased parties to agitate their rights. In case there be any controversy as to such rights, it is at this stage that it is open to them to present their case, before the final decree is passed."
In AIR 1967 SC 1470, Phoolchand v. Gopal Lal, the Supreme Court made a very lucid exposition of the scope and ambit of Order 20, Rule 18 and stated the law as to what matters should be decided in a final decree proceeding of a suit for partition. The court held : --
"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 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."
In AIR 1977 Orissa 154, Ghanashyam Martha v. Brundaban Pradhan, there was serious dispute between the parties regarding the allotment of alientated lands. Relying upon the decision in the case of Phoolchand (AIR 1967 SC 1470) (supra) and other decisions as well, P. K. Mohanti, J. held that a partition suit must be deemed to be pending till a final decree is actually passed and that any number of preliminary decrees can be passed therein. During this period the Court may give such directions as may be necessary from time to time to adjust the equities between the parties as regards the valuation of the properties and their allotment to individual shares and decide all other incidental matters that may arise. Ultimately the order of the final decree court allotting alienated lands in favour of the parties concerned was upheld, in AIR 1977 Kant 60, A. Thakurdas v. A. Venilal, it was held that a preliminary decree of partition is really declaratory in nature and it is implicit in that decree that further proceedings are required to complete the partition. In a partition suit it is not essential that only one preliminary decree may follow. There may arise subsequent events which make it obligatory to pass another preliminary decree modifying the terms of the former and thereby setting at rest the various controversies which may be raised between the parties. The purpose of the preliminary decree is decidedly this that the terms settled by the Court are executed and respective possessions are delivered after deciding equities between the parties. In AIR 1978 Kant 76, Shivaramaiah v. Mallikarjunaiah, after the preliminary decree for partition, one of the plaintiffs died and the surviving plaintiff filed an application for adjustment of share and there was dispute as to the devolution of share of the deceased person. It was held by a Division Bench that what was prayed for was the passing of a further decree in the light of the events that had taken place subsequent to the passing of the decree under Order 20, Rule 18(1) of the Code. Therefore when the court was approached with such an application, it was not asked to sit in judgment over the decree already made under Order 20, Rule 18. What it was called upon to do was to adjust the rights of the parties in view of the subsequent events that had taken place.
It, therefore, appears to be the settled position of law that the final decree proceeding is a stage in continuation of the suit for partition. The partition suit should be deemed to be pending until a final decree is passed. The preliminary decree declares and determines the shares of parties, but all other equities which requires determination and adjustment amongst them are to be decided in the final decree proceeding with the objective of not driving the parties to institute separate suits. Events which have happened subsequent to the passing of the preliminary decree can also be taken into consideration and decided at the stage of the final decree proceeding. If rights of parties are decided during the final decree proceeding, such decision will amount to another preliminary decree in the suit for partition. Thus, all disputes of the parties are intended to be settled once for all in the final decree proceeding, so that the parties thereto shall not again approach the court by instituting fresh suits in respect of the subject matter of partition.
Now reverting to the case in hand, the learned Subordinate Judge did not keep in mind the above position of law and disallowing the plaintiffs prayer, failed to exercise jurisdiction vested in him. Therefore, this part of the order has to be vacated.
6. In the result, the Civil Revision is allowed and the order by which the learned Subordinate Judge rejected the prayer of the, plaintiffs is vacated. The case is remanded for disposal according to law in the light of the observations made above. Parties shall bear their own costs.