Karnataka High Court
Shidlingappa Basawantappa Shipari And ... vs Padmabai on 8 December, 1986
Equivalent citations: ILR1987KAR336
JUDGMENT Chandrakantaraj Urs, J.
1. These two appeals are by defendants 4 and 5. The appeals are directed against the order made in DF. OS. No. 57/1965 in O.S. No. 57/1965 on the file of the II Addl. Civil Judge, Belgaum.
2. In the course of this judgment, we will refer to the parties by the ranks assigned to them in the trial Court.
3. Briefly the facts leading to these two appeals, which are disposed of by the common following order, may be stated and they are as follows :--
First respondent, Padmabai (in RFA. 13/77) is the plaintiff in O.S. No. 57/65. The said Padmabai was the junior wife of one Srinivas Patil. Srinivas Patil had another wife by name Sharadabai. Srinivas Patil died issueless in the year 1952. Thereafter the senior wife Sharadabai adopted one Shankar. The adoption took place in 1962. The adoption itself is not in dispute. However, in 1962, soon after the adoption, the natural father of Shankar, who was at that time a minor, sold two properties, R.S. Nos. 283 and 279 on 12-5-1961 and 15-7-1964 respectively. These two properties were part of the suit schedule properties in O.S. No. 57/65 filed by Padmabai for her 1/4th share in the joint family properties of late Srinivas Patil. A preliminary decree came to be passed in the said suit decreeing the suit of the plaintiff on 30-8-1969.
4. One of the issues decided in the suit was the validity of the sale transactions in favour of the appellants by the natural father of adopted son Shankar. The trial Court after appreciating the evidence on record in that behalf came to the conclusion that the sale by the natural father of the properties belonging to the family of Srinivas Patil was not competent, inasmuch as he was neither the natural guardian of Shankar nor the legal guardian. The sales in question were clearly hit by Sections 7 and 8 of the Hindu Minority and Guardianship Act, 1956 read together. In the result, the trial Court declared the sales in question to which we have adverted as null and void and not binding on the members of the joint family of late Srinivas Patil.
5. An appeal filed by the adopted son Shankar in R.F.A. No. 8/70 has been dismissed confirming the decree on 17-7-1973. Throughout the litigation to which we have referred to the present appellants in these two appeals remained exparte in the trial Court as well as in the earlier appeal in this Court.
6. In the above circumstances, Padmabai presented an application under Order XX for determination of mesne profits due to her under the preliminary decree. The contesting respondent Shankar in those proceedings agreed that R.S. Nos. 279 and 283 of Asundi village, of which the appellants were the purchasers, may be assigned to the share of the plaintiff and a sum of Rs. 7,000/- may be awarded as mesne profits from the date of suit till the date of final decree. The plaintiff Padmabai also agreed and therefore final decree was drawn up as follows:--
"It is hereby ordered that plaintiff be allotted Sy. Nos. 279 and 283 of Asundi in lieu of her 1/4th share in the larded properties and she do get possession of the same. It is hereby ordered that the mesne profits are ascertained and fixed at Rs. 7,000/- and the attached amount be paid to plaintiff on payment of Court Fee on the said amount. No order as to costs. Draw up a final decree accordingly on plaintiff furnishing the stamp papers."
7. Aggrieved by the same, the appellants have now preferred these two appeals inter alia contending that the final decree proceedings are void and unenforceable in as much as the trial Court cannot by consent of parties pass a final decree without directing the Deputy Commissioner under Section 54 of the CPC to make a partition by metes and bounds of the suit schedule revenue lands.
8. The foundation for this argument is a decision of the Division Bench of this Court in the case of Narasu and Ors. v. Narayan Krishnaji and Ors., AIR 1959 Mysore 233 In the said case this Court ruled as follows :
"A decree passed under Rule 18(1) of Order XX directing partition by the Collector cannot be said to be & preliminary decree. So far as the Civil Courts are concerned, it is final for all purposes, though the partition of the property may remain, to be effected by the Collector. Sub-rule (1) of Rule 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector. It says that the Court 'shall direct such partition or separation to be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54".
"This direction must be deemed to be a part or the decree. Any application filed before the Court which passed the decree to send the papers to the Collector could only be considered as a reminder to the Court to follow up its direction given under Sub-rule (1) of Rule 18. No period of limitation is provided for such a reminder as the same is not one contemplated by law.
In sending the papers to the Collector, the Court is not performing any judicial function ; nor is it required to pass any judicial order."
"Its function could at best be described as ministerial. It will be inappropriate to call such an application as an execution application. The Court which passed the decree must be deemed to have become functus officio after passing the decree". (underlining is ours)
9. On the basis of the above ruling of the Division Bench Sri N.A. Mandagi, Learned Counsel for the appellants strenuously contended that there was no means by which the Court could have assumed jurisdiction to pass a final decree without referring the matter to the Deputy Commissioner for division by metes and bounds.
We do not think, the Learned Counsel is right in placing reliance on the above ruling in the light of the subsequent rulings of this Court explaining not only the said decision but also other decisions on the subject.
As this question is likely to come up in more than one case, we would like to refer to some decisions and explain the law in the light of the decision of the Full Bench of this Court.
It would be useful first to refer to the decision of the Supreme Court in the case of Garikapati Veerayya v. N. Subbiah Choudhry and Ors., Majority of the Judges in that decision held that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
In the case of Phoolchand and Anr. v. Gopal Lal, a Bench of the Supreme Court had occasion to consider the effect of variation of shares in a partition suit after drawing up of a preliminary decree. It observed :
"So far as partition suits are concerned 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. However, this can only be done so long as the final decree has not been passed".
The above ruling will apply to the facts of this case cannot be disputed as the present appeals arise out of a partition suit.
10. What really transpired in the application for determination of mesne profits was no more than a continuation of a suit which had come to rest at the stage of preliminary decree after the Judgment of this Court in RFA No. 8/70 disposed of in the year 1973. That preliminary decree was subject to modification for any number of reasons. In such an event it cannot be said the Court is without the authority to make the necessary changes in the preliminary decree either on account of the agreement of parties or on account of, say, death of the parties which may result in the alteration of the shares allocable to the remaining parties in the suit.
11. This aspect fell for direct consideration before a Single Judge of this Court in the case of Shambu Mada Hegde v. Rama Ishwar Hegde., 1969 (2) Mys.L.J 212 D.M. Chandrasekhar, J. (as he then was) ruled as follows :
"The court which passed a preliminary decree in a suit for partition of properties including lands assessed to revenue, has competence and duty to take into account a compromise between the parties subsequent to such preliminary decree and to pass a fresh decree in accordance with such compromise".
In the above ruling the learned single Judge relied upon a decision of the Madras High Court and also explained the ratio deeidendi of the earlier case, i.e., Narasu's case supra. With reference to Narasu's case, the learned single Judge placed reliance upon the ruling of the Supreme Court in Phoolchand's case supra. The passage relied upon by the learned single Judge reads thus :-
"We are of opinion that there is nothing in the Code of Civil Procedure 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 .... "
12. To hold that the dicta in Narasu's case axiomatically covered all cases of preliminary decrees drawn up in partition suits would be contrary to the dicta of the Supreme Court.
Similar was the view expressed by the Division Bench of this Court in the case of Muppanpa Halappa v. Channappa Halappa and Anr., AIR 1964 Mysore 169 In Muppanna's case a Bench of this Court having examined several decisions not only of this Court but also of other High Courts, specifically rejected an identical contention made, which was, that the Court which passed decree must be deemed to have become functus officio after passing the decree and observed that that observation was no more than following the decision of the Full Bench of the Madras High Court in the case of Sree Rajah Mantripragada Venkataraghava Rao Bahadur, Zamindar Garu and Ors. v. Sri Rajah Mantripragada Venkata Hanumantha Rao Bahadur, Zamindar Garu (Deceased) and Ors., AIR 1945 Madras 336 which had laid down that the Court which had passed the decree for partition to which Section 54 applied and had sent it to the Collector for the purpose of effecting the partition had no power to hear objections to the partition made by the Collector or his subordinates or to modify the partition. This view of the Madras High Court differed from the earlier view of the Bombay High Court which had taken the view that the Court retained control over the actions of the Collector, even after the decree was transmitted for partition by metes and bounds under Section 54 CPC.
That the Madras High Court's view has been followed by this Court in more than one case is not in dispute. In fact, one of us sitting singly in disposing of a CRP directed against an order made in a final decree proceedings followed the decision in Muppanna's case falling in line with the opinion expressed by the Madras High Court (see Mahadevappa v. Marithyamma and Ors., 1981 (2) KLJ 465).
That the predominant view that emerges from the decisions to which we have referred to is that there is no fetter imposed on the Civil Court to amend, alter or modify a preliminary decree at any stage including the act of recording a compromise on the facts of a particular case.
13. We will shortly advert to the ratio decidendi as we understand in the case of Narasu, supra. But on the fact of the case which give rise to these appeals we are satisfied that what happened in the course of determination of the mesne profits to which the plaintiff was entitled to was no more than an overall settlement arrived at between the plaintiff and the contesting defendant by which selected properties in the suit schedule were assigned to plaintiff's share and an agreed sum was given as past mesne profits. The order further points out that certain properties which were situated in the area of Malaprabha Project had been already acquired by the State and the plaintiff had received her 1/4th compensation. In other words, due to a number of events. drawing up of final decree had already been affected by subsequent events which had taken place and very little remained to be done, except to divide by metes and bounds what had already not been divided by the course of events or by the occurrence of other events.
14. In any event, whatever may be the rights inter se the plaintiff and the contesting defendant, i. e., Shankar, the adoptive son, the appellants were non-suited as soon as the sales in their favour effected by an incompetent person purporting to act as guardian was held to be void and not binding on the members of the family. The appellants acquired no right, title and interest at all to any of the revenue survey numbers with which we are concerned in these appeals at any point of time and therefore we must hold that they have no locus standi to prosecute these appeals, not having prosecuted appeals against the preliminary decree earlier; nor having participated in the regular first appeal in this Court with any cross-objection.
15. Now before parting with the case, we must refer to the decision of the Full Bench of this Court in regard to the Court becoming functus officio after passing the preliminary decree. In Ganapatrao Roajirao Desai v. Balavant Krishnaji Desai and Ors., 1963 (2) Mys.L.J. 768 after examining some of the earlier decision the Full Bench laid down the following propositions of law:
(i) The court which passed the decree retains no power or jurisdiction to correct or review the partition made by the Collector under Section 54 CPC.
(ii) Section 54 and Order 20, Rule 18 constitute the Collector an exclusive authority to effect partition and there is no provision in the CPC which confers any power on a Civil Court to sit in judgment over the partition effected by the Collector [1963(2) Mys. L.J. 451 over-ruled].
(iii) A party aggrieved by partition affected by the Collector cannot approach the Civil Court even by an application under Section 47 CPC, since the Court which passed the decree cannot be called a Court executing the decree so far as it relates to partition under Section 54.
(iv) Inherent power of the Civil Court cannot be invoked to exercise jurisdiction over the Collector, since the collector is not a Court constituted under the CPC, nor is a Civil Court superior to the Collector. In functioning under Section 54 the Collector acts as an independent Tribunal.
(Underlining is ours)
16. This once again is no more than falling in line with the Full Bench decision of the Madras High Court. Therefore, the question of becoming functus officio arises only after the Collector has dealt with the matter after reference to him. In Narasu's case this Court did not point out more than what was implicit in the drawing up of a preliminary decree. That the matter of dividing be metes and bounds lands assessed to revenue could rely be done by the Collector or a subordinate officer authorised by him and not by the process of the Civil Court was the law declared. It is only in that sense the Court becomes functus officio and not for exercising its judicial authority conferred on it by the provisions of the CPC. To subscribe to the view that for all purposes the Civil Court becomes functus officio would be misreading the ruling of this Court. In Narasu's case without reference to the fads of that case ignoring the exact questions which fell for consideration of this Court, in Narasu's case plaintiff filed an application to send the decree to the Collector for partitioning the property under Order XX Rule 18. That was resisted by the respondent-judgment debtors. The lower Court raised issues and answered them in favour of the decree-holder. It was on those facts the Court ruled as extracted earlier. That is how we have understood Narasu's case and we are supported in this view by the decision of the Division Bench of this Court in the case of Hanmappa Rangappa Petlur v. Venkappa Rangappa Petlur and Ors., 1969 (1) KLJ 625 wherein their Lordships have clearly held that the jurisdiction of the Deputy Commissioner to effect division of the land in pursuance of a decree for partition arises on account of the direction contained In the decree. His jurisdiction over the proceedings starts when he receives the papers and the date of such receipt of the records may be taken as the date of initiation of proceedings before him for the purpose of determining the law applicable to such proceedings.
17. Here on the facts of this case, there is no dispute that the matter was never referred to the Collector and therefore the Civil Court divesting itself of its own jurisdiction did not arise at all.
For all the above reasons, we reject the contention of Sri Mandagi.
18. We have been guided in arriving at the conclusions on the golden rule that what has been laid down in a ruling is relatable to facts of that case. What is said in Narasu's case must be stated to be the correct decision on the facts of that case only.
19. The appeals fail and are dismissed.