Civil Appeal Nos.319-220 of 2009

2nd August, 2017.

Petitioner Counsel: Mr. K. MARUTHI RAO, Ms. K. Radha, Ms. ANJANI AIYAGARI
Respondent Counsel: Mr. JEETENDRA MOHAN SHARMA, Sr. Adv., Mr. P. VENKAT REDDY, Mr. PRASHANT TYAGI, Mr. ANIL KUMAR TANDALE

Cases Cited:
T. Ravi Vs. B Chinna Narasimha, 2017 ALL SCR 733=2017(3) SCALE 740 [Para 14]
Venkata Reddy & Ors. Vs. Pethi Reddy, AIR 1963 SC 992 [Para 14]
Phoolchand and Anr. Vs. Gopal Lal, AIR 1967 SC 1470 [Para 15]
SS Reddy Vs. Narayan Reddy, (1991) 3 SCC 647 [Para 16]
S. Satnam Singh and Ors Vs. Surender Kaur and Anr., 2009 ALL SCR 1=(2009) 2 SCC 562 [Para 17]

JUDGMENT

JUDGMENT :- Heard the learned counsel for the parties.

2. These appeals have been preferred against the judgment and order dated 30.11.2007 passed by the High Court of Andhra Pradesh in Civil Revision Petition Nos.3914 and 3144 of 2007, whereby the High Court allowed the impleadment of respondent No.3 in the final decree proceedings on the basis of deed of settlement dated 30.12.1978.

3. The facts indicate that defendant Nos.2 and 3 are sisters. Late Sardar Santh Singh, with the consent of his wives, adopted the appellant herein-Sardar Surjeet Singh, when he was three years old. After the adoption, Smt. Juguna Bai gave birth to one daughter-Sathnam Kaur, defendant No.3. Later on, one adoption deed was executed on 7.7.1978.

4. A suit for partition was filed in which the Trial Court passed a preliminary decree on 11.10.1990 giving 1/3rd share to the appellant, 1/3rd share to be shared between two wives-Rama Bai and Juguna Bai, with 1/6th share each and remaining 1/3rd to Sathnam Kaur-daughter.

5. The appeal against the final decree was ultimately withdrawn by the plaintiff after the death of Rama Bai, during the pendency of the appeal. Thereafter, an application was filed in the year 1993 for passing of the final decree. Nima Kaur, the foster daughter of Sardar Santh Singh, filed I.A. No.1491 of 1993 under Order 1 Rule 10 CPC for impleading her as defendant No.4, claiming herself to be foster daughter of Sardar Santh Singh and, in view of the settlement deed dated 30.12.1978, she claimed 1/3rd share.

6. The appellant resisted the application. It was contended that she was not having any right as the preliminary decree, which had been passed in civil suit, had attained finality. The existence of the settlement deed dated 30.12.1978 was denied. On 12.7.1996, the Civil Judge dismissed the application filed by Nima Kaur. She preferred a revision in the High Court in C.R.P.No.3124 of 1996, to be impleaded as defendant No.4 in the Suit being O.S. No.54/81, which was allowed vide order dated 28.7.1997.

7. The Trial Judge, by a docket order dated 26.11.2002, directed the plaintiff to carry out the amendment and ordered that the final decree proceedings be closed. Against the said order, C.R.P.No.6088/2002 in O.S.No.54/81 and C.R.P. No.620/2003 in I.A.No.697/93 in O.S.No.54/81 were filed before the High Court.

8. The High Court allowed both the CRPs and directed the Trial Court to proceed with the final decree proceedings only and dispose of the same in accordance with law. The High Court opined that it was evident that admittedly no challenge was made as against the preliminary decree by respondent No.4, the preliminary decree passed on 11.10.1990 had become final and even the appeal filed by the plaintiff had been dismissed on 6.4.1993 confirming the said decree. A preliminary decree once passed could not be set aside unless and until the appeal was filed. Mere allowing an impleading petition, and that too during the final decree proceedings, would not entitle respondent No.4 to plead that the preliminary decree has to be reopened. Vide order dated 8.12.2003, the High Court opined that if at all respondent No.4 has any say, within legal parameter, the same is open to her to be agitated.

9. Nima Kaur thereafter, filed an application being I.A.No.1258 of 2004 in I.A.No.697/93 in O.S.No.54/81 to receive a document dated 12.8.1979 purported to be a relinquishment deed but the said application was rejected by the Civil Judge vide order dated 8.12.2004. Aggrieved thereby, C.R.P. No.86/05 was preferred by Nima Kaur, which was dismissed by the High Court. The High Court observed that these rights have to be considered by the executing court, if any, during final decree proceedings.

10. On 5.2.2007, the Civil Judge passed the final decree allotting half share to the appellant, 1/6th share to Juguna Bai and 1/3rd share to Satnam Kaur. It was also held by the said Court that Nima Kaur was not entitled for any share in the suit property and her remedy was to file a separate suit. It would not be possible for the Court to determine her share in the final decree proceedings on the basis of the deed dated 30.12.1978. Aggrieved thereby, Juguna Bai and Satnam Kaur filed C.R.P.No.3914/07 and Nima Kaur filed C.R.P. No.3114/07. The High Court vide impugned order dated 30.11.2007 directed the Trial Court to examine the claim of Nima Kaur independently so that she would be able to establish her claim over the property left by Sant Singh. preliminary decree shall be modified to the extent needed and shall also decide as to who succeeded to the estate of the deceased and re-determine the shares accordingly. The said order has been questioned before us in this appeal.

11. It was submitted by the learned counsel appearing on behalf of the appellant that once a preliminary decree has been passed, determining the shares, during the final decree proceedings, the shares could not have been altered as has been ordered by the High Court. Preliminary decree had attained finality. It was not an intervening event which has taken place after passing of the preliminary decree and before passing the final decree which can only be taken into consideration for redeterrmining of shares. The only remedy available to workout any right, if at all available to Nima Kaur, was to file an independent suit to establish her right, title or interest on the basis of deed dated 13.10.1978 or relinquishment deed of 1979 and not by way of filing application in a final decree proceedings to get rid of the preliminary decree, which has attained finality.

12. Learned counsel further submitted that Nima Kaur otherwise would not have any right, title or other interest in the property left by the deceased. Document itself was doubtful. Thus, the High Court has erred in violating its own earlier order laying down that preliminary decree would not be reopened. The High Court has ordered reopening of the preliminary decree which was not permissible.

13. Learned counsel appearing on behalf of the respondent has strenuously urged that during the final decree proceedings, the extent of the share to be allotted to each of the respondent parties can be worked out. Once the gift deed has been executed, in the form of settlement deed in favour of respondent No.3 - Nima Kaur, she was entitled to press her claim for settlement of the said property during the final decree proceedings. To that extent, the shares of other members were rightly required to be reduced. Learned counsel has relied upon various decisions of this Court to be referred later.

14. After hearing the learned counsel for the parties, we are of the opinion that the question whether preliminary decree can be reopened, has been considered by this Court in T. Ravi V. B Chinna Narasimha [2017(3) SCALE 740] : [2017 ALL SCR 733], in which reliance has been placed on Venkata Reddy & Ors. v. Pethi Reddy {AIR 1963 SC 992] and in view of section 97 of CPC it has been laid down that once the matter has been considered in preliminary decree, it cannot be reagitated in the appeal against the final decree. Preliminary decree is final with respect to the shares. In T. Ravi V. B Chinna Narasimha, [2017 ALL SCR 733] this Court held as under:

"37. In the instant case preliminary decree was passed in the year 1970 and the shares were declared to the aforesaid extent of the respective parties therein who were the heirs of Late Nawab Jung. Hamid Ali Khan, defendant No.1, had only 14/104th share in the disputed property. Preliminary decree dated 24.11.1970 has attained finality which was questioned in appeal on limited extent in the High Court which has attained finality by dismissal of LPA on 12.10.1977. Thus the determination of shares as per preliminary decree has attained finality, shares of the parties had been crystalised in each and every property. Purchaser pendente lite is bound by the preliminary decree with respect to the shares so determined and it cannot be re-opened and whatever equity could have bee claimed in the final decree proceedings to the extent of vendor's share has already been extended to the purchasers.

38. In Venkata Reddy & Ors. v. Pethi Reddy AIR 1963 SC 992, it has been laid down that the preliminary decree for partition is final. It also embodies the final decision of the Court. The question of finality has been discussed thus :

"6.The new provision makes it clear that the law is and has always been that upon the father's insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest. The provision is thus declaratory of the law and was intended to apply to all cases except those covered by the two provisos. We are concerned here only with the first proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent Court. The short question, therefore, is whether the preliminary decree for partition passed in this case which was affirmed finally in second appeal by the High Court of Madras can be regarded as a final decision. The competence of the Court is not in question here. What is, however, contended is that in a partition suit the only decision which ca be said to be a final decision is the final decree passed in the case and that since final decree proceedings were still going on when the Amending Act came into force the first proviso was not available to the appellants. It is contended on behalf of the appellants that since the rights of the parties are adjudicated upon by the Court before a preliminary decree is passed that decree must, in so far as rights adjudicated upon are concerned, be deemed to be a final decision. The word 'decision' even in its popular sense means a concluded opinion (see Stroud's Judicial Dictionary - 3rd ed. Vol. I, p. 743). Where, therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is o longer open to question by either party except in an appeal, review or revision petition as provided for by law. The High Court has, however, observed :

"The mere declaration of the rights of the plaintiff by the preliminary decree, would, in our opinion not amount to a final decision for it is well known that even if a preliminary decree is passed either in a mortgage suit or in a partition suit, there are certain contingencies in which such a preliminary decree can be modified or amended and therefore would not become final."

It is not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned Judges meant was modified or amended in appeal or in review or in revision or in exceptional circumstances by resorting to the powers conferred by Sections 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a Court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be modified and amended. Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees - a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the Court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to S.97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree."

15. In the case of Phoolchand and Anr. vs. Gopal Lal, AIR 1967 SC 1470, this Court has laid down that there can be variation in shares in the preliminary decree. Variation itself is a Decree. In a case for partition, if any event transpires after preliminary decree, which necessitates the change in shares, same can be considered. This Court laid down thus :

"6. The next contention is that there cannot be two preliminary decrees and therefore when the trial court varied the shares as indicated in the preliminary decree of August 1, 1942 there was no fresh preliminary decree passed by the trial court. It is not disputed that in a partition suit the court has jurisdiction to amend the shares suitably even if the preliminary decree has been passed if some member of the family to whom an allotment was made in the preliminary decree dies thereafter : (Parshuram v. Hirabai "AIR 1957 Bom 59'). So the trial court was justified in amending the shares on the deaths of Sohan Lal and Smt. Gulab Bai. The only question then is whether this amendment amounted to a fresh decree. The Allahabad High Court in Bharat Indo v. Yakub Hassan (1913 ILR 35 All 159) the Oudh Chief Court in Kedemath v. Pattu Lal (ILR 20 Luck 557 (AIR 1945 Oudh 312), and the Punjab High Court in Joti Parshad v. Ganeshi Lal (AIR 1961 Punj 120) seem to take the view that there can be only one preliminary decree and one final decree thereafter. The Madras, Bombay and Calcutta High Courts seem to take the view that there can be more than one preliminary decree : (Kasi v. V. Ramanathan Chettiar(1947-2 Mad LJ 523) Raja Peary Mohan v. Manoha r (27 Cal WN 989 (AIR 1924 Cal 160), and Parshuram v. Hirabai. AIR 1957 Bom 59.

7. 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. 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 (1) A.I.R. 1957 Bom. 59. (3) (1945) I.L.R. 29 Luck, 557. (5) [1947] II Mad. L.J. 523. (2) (1913) I.L.R. 35 All. 159. (4) A.I.R. 1961 Puni. 120. (6) [1923] 27 Cal. W.N. 989. 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 Code of Civil Procedure 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 Code of Civil Procedure 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, particularly 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 al- ready 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."

The decision is distinguishable and cannot be said to be applicable in view of the factual matrix of the instant case where the right has been asserted, which came into existence before the preliminary decree was passed and Nima Kaur was not a party to suit. It also appears that it was not the plea that was taken by any of the parties during the course of preliminary decree that she was having right, title or interest on the basis of settlement/gift deed dated 30.12.1978.

16. Learned counsel has also relied upon the decision of this Court in SS Reddy vs. Narayan Reddy, (1991) 3 SCC 647, in which there was change of law after passing of the preliminary decree. In that context, this Court has laid down that since Hindu daughter's rights in coparcenary property were not recognized earlier, it should be taken on the basis of the law which prevails on the date of final decree proceedings. In the meanwhile, after passing of preliminary decree the amendment that has been taken place by way of Amending Act was taken into consideration and the final decree was modified, accordingly. It was also a case of subsequent event after passing of the preliminary decree which necessitated re-determination of the shares, otherwise preliminary decree was final. Factual matrix is not the same in the instant case. In S. Sai Reddy vs. S. Narayana Reddy & Ors. (supra), this Court laid down thus:

"7. The question that falls for our consideration is whether the preliminary decree has the effect of depriving respondents 2 to 5 of the benefits of the amendment. The learned counsel placed reliance on clause (iv) of Section 29-A to support his contention that it does. Clause (ii) of the section provides that a daughter shall be allotted share like a son in the same manner treating her to be a son at the partition of the joint family property. However, the legislature was conscious that prior to the enforcement of the amending Act, partitions will already have taken place in some families and arrangements with regard to the disposition of the properties would have been made and marriage expenses would have been incurred etc. The legislature, therefore, did not want to unsettle the settled positions. Hence, it enacted clause (iv) providing that clause (ii) would not apply to a daughter married prior to the partition or to a partition which had already been effected before the commencement of the amending Act. Thus if prior to the partition of family property a daughter had been married, she was disentitled to any share in the property. Similarly, if the partition had been effected before September 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried was not given a share in the family property. The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits.

8. Hence, in our opinion, the High Court has rightly held that since the final decree had not been passed and the property had not been divided by metes and bounds, clause (iv) to Section 29-A was not attracted in the present case and the respondent-daughters were entitled to their share in the family property."

17. Reliance has also been placed on a decision of this Court in S. Satnam Singh and Ors vs. Surender Kaur and Anr. [(2009) 2 SCC 562] : [2009 ALL SCR 1] in which this Court laid down thus:

"18. In certain situations, for the purpose of complete adjudication of the disputes between the parties an appellate Court may also take into consideration subsequent events after passing of the preliminary decree.

In Ct. A. Ct. Nachiappa Chettiar & Ors. V. Ct. A. Ct. Subramaniam Chettiar [(1960) 2 SCR 209], it was held :

"20 It would thus be seen that the respondent's share in the family properties was not in dispute nor was his share in the properties in Burma seriously challenged. The only plea raised in respect of the latter claim was that the court had no jurisdiction to deal with it. This state of the pleadings in a sense truly reflected the nature of the dispute between the parties. It is common ground that the family is a trading family and there could be no doubt that the assets of the family were partible between the members of the family. It was on these pleadings that the trial judge framed fifteen issues and set down the case for hearing."

19. While dealing with the application under Section 21 of the Arbitration Act, 1940 where one of the questions was as to whether an immoveable property situated in Burma could be a subject matter of reference, in Phoolchand & Anr. v. Gopal Lal [(1967) 3 SCR 153], it was held :

"7. 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. 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 Code of Civil Procedure 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 Code of Civil Procedure does not contemplate such a possibility."

Thus, subsequent event can be taken consideration while working out the preliminary decree into the shape of final decree. It was also a case of subsequent event. As such, it is quite distinguishable. In the instant case, the preliminary decree has attained finality. The High Court has earlier rightly observed that preliminary decree would not be reopened due to impleadment which had been ordered.

18. In our opinion, the High Court has erred in law while directing that further preliminary decrees can be passed. It was not a case of subsequent event or change of law. The only remedy available to Nima Kaur was to file a separate suit. Accordingly, we restore the order passed by the Civil Judge and set aside the order passed by the High Court in the revision petition. The appeals are allowed to the aforesaid extent. It is made clear that we have not adjudicated on the rights of Nima Kaur while deciding this matter and we have prima facie made the observations to decide whether any share she could claim in the final decree proceedings. Therefore, fresh suit, if any, to be filed by her, be decided unfettered by any observations made by us in the order or in the final decree.

Appeal allowed.