Supreme Court of India

JUDGMENT

D.P. Mohapatra, J.

1. Leave granted.

2. The three appellants, Hridaya Ranjan Prasad Verma, Manoranjan Prasad Verma and Rajiv Ranjan Prasad Verma are sons of Late Shri Kashi Nath Prasad Verma. They have three other brothers who are not directly involved in the present proceedings. Late Kashi Nath Prasad Verma was the owner of Khasra No. 213, Plot No. 1172, in Village Srinagar, within Siwan Police Station. On his death his six sons succeeded to the property. Appellant No. 1 is a neurosurgeon at Patna; appellant No. 2 is the Manager of Pathar Jliora Tea Gardens in Jalpaiguri and appellant No. 3 is a retired marketing manager of Jay Shree Tea and Industries Ltd., Delhi. Respondent No. 2, Manish Prasad Singh, an advocate, is the secretary of Kanishka Sahkari Grih Nirman Samiti Limited, Sewan, (hereinafter referred to as the Society) a cooperative society engaged in purchasing land from different persons and after developing and dividing it into small pieces selling the plots to different customers. The appellants agreed to sell the land in village Srinagar to respondent No. 2 for a consideration of Rs. 16,00,000. The respondent paid a sum of Rs. 11,00,000 to the appellants by way of drafts drawn in their favour on 7.12.92. The appellants executed a registered sale deed in respect of the land in favour of the Society. It is the case of the appellants that on insistence of respondent No. 2 two other brothers of the appellants signed the sale deed as witnesses. By way of a further safeguard the appellants executed a separate indemnity deed on the same day in which they undertook to indemnify any loss caused to the society on account of any objection which may be raised by any co-sharer against transfer of the land in future. The appellants assert that they have delivered possession of the land to the society on the same day. Another brother of the appellants Priya Ranjan Prasad Verma also executed a sale deed in favour of the society alienating his portion of the land.

3. On registration of the sale deed respondent No. 2 handed over three cheques to the appellants for the sum of Rs. 5,50,000. When the appellants presented the said cheques in the bank, the same were dishonoured on account of insufficiency of amount in the account of the drawer. The respondent No. 2 had issued a separate cheque in favour of Priya Ranjan Prasad Verma which was also dishonoured for the same reason.

4. Prior to the execution of the sale deed Akhil Ranjan Prasad Verma brother of the appellants had filed a suit, Title Suit No. 118 of 1990 for partition alleging inter alia that though the properties left by their father had been partitioned amongst the brothers in 1971 no division by metes and bounds had taken place. On 5.12.1992 on the application filed under Order 39 Civil Procedure Code the learned subordinate judge, Siwan passed an interim order restraining the appellants from disturbing the status quo or transferring the land of Schedule I to the plaint but no injunction was passed in respect of the land described in Schedule-VI of the plaint in which the property in dispute in the present proceeding is included. According to the appellants the plaintiff Akhil Ranjan Prasad Verma did not press his prayer for injunction in respect of the Schedule IV properties. It is the further case of the appellants that between 9.12.92 to 18.12.92 the respondent No. 2 sold portions of the land sold by them to several other persons.

5. When the cheques issued by the respondent No. 2 in their favour bounced the appellants made several requests to the said respondent for payment of the amount. On each such occasion the said respondent avoided to pay the amount promising to do so within a short time. Finally on 21.10.1995 the appellants through their advocate sent a notice to respondent No. 2 reminding him that the cheques issued by him in favour of the appellants had bounced due to insufficiency of funds. Finding that respondent No. 2 had no intention to pay the amount, the appellants lodged a first information report under Sections 406, 420 and 120B IPC with the Siwan Police Station on 11.11.1995 which was registered as Siwan Misfile Case No. 191/95. In the said FIR the respondent No. 2 and Avdesh Narayan Rai who was the Vice President of the cooperative society were named as the accused. The police after investigating into the allegations made in the FIR filed a charge-sheet against respondent No. 2 and Avdesh Narayan Rai. The appellants also filed three suits for realisation of the amount due to them.

6. Shortly thereafter on 14.12.1995 the respondent No. 2 filed complaint No. 1282/95 in the Court of the Chief Judicial Magistrate, Siwan against the appellants alleging commission of offences under Section 418 (Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect), Section 420 (Cheating and dishonestly inducing delivery of property), Section 423 (Dishonest or fraudulent execution of deed of transfer containing false statement of consideration), Section 469 (Forgery for purpose of harming reputation), Section 504 (intentional insult with intent to provoke breach of the peace) and Section 120B IPC (criminal conspiracy). It is the case of the appellants that the FIR was filed as a counter blast to the criminal case and the civil suits filed by them against the respondent No. 2.

7. In the complaint respondent No. 2 alleged inter alia that by conspiring together all the accused have defaulted and cheated the society and the complainant by giving false, concocted and wrongful information and assurances saying to have a Sada “Kora” and thus they induced the complainant to enter into negotiations and also to advance them a heavy amount with their ulterior design to acquire wrongful gain to themselves and for wrongful loss to the society and the complainant – both monitory and reputational. Some averments in the complaint relevant for the purpose of this proceeding are extracted hereunder:

That at the time of giving proposal to the complainant for buying the said land, accused No. 1 asserted that the said land has fallen exclusively to the share and possession of three brothers (all accused) after the partition of the estate left by late Kashi Nath Prasad Verma among all his six sons and a “Kora” to this effect has also been prepared and signed by all the brothers. Accused No. 1 also said that the said Kora was not available at that time and he would show as and when need be.

That all accused hail from a very sound and respectable family and accused No. 1 specially being a renowned doctor, appeared to be more trustworthy to the complainant. The complainant showing due respect to accused No. 1 believed him and entered into negotiation with him for purchase of said land.

That ultimately all the accused appeared at Siwan for executing the sale deeds in favour of the Society on a date fixed earlier by them. Just before the execution of the sale deed the complainant asked the accused to show the “Kora” prepared and signed by them (all the six brothers). The accused did not show the “Kora” and assured that all the brothers will join the deed. The accused will execute the sale deeds and rest three brothers will join the sale deeds as attesting witnesses.

That the sale deeds in question were scribed at the direction and dictation of the accused in favour of the Society in respect of entire land but only two brothers out of rest three came to join the deeds as attesting witnesses and one of them i.e. sixth brother namely Praful Ranjan Prasad Verma did not appear to do the same as assured by accused No. 1 to the complainant.

That in order to avoid future complications the complainant proposed the accused either to retain 1/6th share of land for themselves and to execute sale deeds in respect of only five shares of land or to refund the money to the complainant given to them as advance consideration money. But the accused did not agree to the proposals of the complainant saying that they will execute an agreement to the effect that in case of any future trouble to the Society, the executant i.e. the accused will be liable to compensate the Society. Thus the complainant, seeing no alternative, agreed to the proposal of the accused to execute sale deeds in respect of entire lands and sale deeds were executed accordingly.

That in the meantime, some days after the execution of the said sale deed, the complainant came to know that Title Suit No. 118/90 tiled by Akhil Ranjan Prasad Verma, one of the six brothers of the accused as plaintiff against Priya Ranjan Prasad Verma & five others as defendants was subjudice in the court of Sub-Judge-III, Siwan, long before the starting of the negotiation for the sale and purchase of said land. Besides, another suit bearing no 68/83, Nagendra Nath Sinha and Ors.-plaintiffs v. Singhashani Devi and Ors., defendants has also been pending in the Court of Munsif-1 Siwan from long before the starting of the negotiation of sale and purchase of the said land. The accused had concealed these facts from the complainant at the time of negotiation and execution of the aforesaid sale deeds.

That from the facts detailed above, it is quite clear that accused have deliberately and intentionally defrauded and cheated the Society and the complainant by suppressing some facts and giving false and concocted information and assurances to the complainant so as to make him believe that the deal is a fair one and free of troubles. The accused did so with an intention to acquire wrongful gain for themselves and to cause wrongful loss to the society and the complainant. The accused have always kept the complainant in wrong box and thus they have induced the complainant to enter into negotiation and advance consideration money to them.

That by suppressing facts relating to two pending cases from before and filing criminal case against the complainant and civil cases against the Society the accused have lowered down the prestige and reputation of the Society and the complainant in the eyes of the members, customers and the public at large, although the complainant has committed no fault since the amount due to the accused has already been entered into the Cash Book of the Society and it has come in the audit Report done for the year 1994-95.

8. In the case of State of Haryana and Ors. v. Bhajan Lal and Ors. [1992] Supp. 1 SCC 335, this Court in the back drop of interpretation of various relevant provisions of the CrPC under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse, of the process of the Court or otherwise to secure the ends of justice, making it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercise:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

9. In the decision this Court added a note of caution to the effect that the power of quashing a criminal proceeding should be exercised ‘very sparingly and with circumspection and that too in the rarest of rare cases’.

10. The principles laid down in this decision have been followed in several decisions of this Court like [1995] 5 SCC 194 Rupan Deol Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr. ; Rajesh Bajaj v. State NCT of Delhi and Ors. [1992] 2 SCC 651;State of Kerala and Ors. v. O.C. Kuttan and Ors. [1996] 9 SCC 1 and P.S. Rajya v. State of Bihar State of Orissa v. Bansidhar Singh.

11. The question is whether the case of the appellants comes under any of the categories enumerated in State of Haryana and Ors. v. Bhajan Lal and Ors. (supra) ? Is it a case where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in entirety do not make out a case against the accused? For determination of the question it becomes relevant to note the nature of the offences alleged against the appellants, the ingredients of the offences and the averments made in the complaint.

12. On a reading of the complaint portions of which have been extracted earlier it is clear that the main offence alleged to have been committed by the appellants is ‘cheating’ punishable under Section 420 IPC.

13. Cheating is defined in Section 415 of the Code as, “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation – A dishonest concealment of facts is a deception within the meaning of this section.

The section requires – (1) Deception of any person.

(2) (a) Fraudulently or dishonestly inducing that person

(i) to deliver any property to any person; or

(ii) to consent that any person shall retain any property; or

(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property.

14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise.

16. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.

17. Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 IPC and its allied offences under Sections 418 and 423 has not been made out. So far as the offences under Sections 469, 504 and 120B are concerned even the basic allegations making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana and Ors. v. Bhajan Lal and Ors. (Supra) and as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in complaint. All that the respondent No. 2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make the respondent No. 2 part with property is not alleged expressly or even impliedly in the complaint. Therefore the core postulate of dishonest intention in order to deceive the complainant-respondent No. 2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of process of the court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same.

18. Accordingly the appeals are allowed. The Judgment/Order dated 13-4-1999 of the Patna High Court in Criminal Misc. No. 22880/1998 and Criminal Misc. No. 24068 of 1998 is set aside and the proceeding in Criminal Case No. 22/96 pending in the Court of Chief Judicial Magistrate, Siwan is quashed.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION [C] NO.17932 OF 2009

Shub Karan Bubna @ Shub Karan

Prasad Bubna … Petitioner Vs.

Sita Saran Bubna & Ors. … Respondents ORDER

R. V. RAVEENDRAN, J.

The first respondent and his mother filed a suit for partition against petitioner and two others in the year 1960 in the court of the First Additional Judge, Muzaffarnagar, for partition and separate possession of their one-third share in the plaint schedule properties and for rendition of accounts. The suit was in respect of three non-agricultural plots and some movables. After contest the suit was decreed on 25.2.1964 directing a preliminary decree for partition be drawn in regard to the one-third share of the plaintiffs in the said plots and a final decree be drawn up through appointment of a Commissioner for actual division of the plots by metes and bounds.

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2. Feeling aggrieved the petitioner (and others) filed an appeal before the Patna High Court which was dismissed on 29.3.1974. The first respondent filed an application on 1.5.1987 for drawing up a final decree. The petitioner filed an application on 15.4.1991 to drop the final decree proceedings as it was barred by limitation. The said application was dismissed by the trial court holding that once the rights/shares of the plaintiff had been finally determined by a preliminary decree, there is no limitation for an application for affecting the actual partition/division in accordance with the preliminary decree, as it should be considered to be an application made in a pending suit. The said order was challenged by the petitioner in a revision petition which was dismissed by the High Court order dated 15.1.2009. The petitioner has filed this special leave petition seeking leave to appeal against the said decision of the High Court.

 

3. The appellant contends that when a preliminary decree is passed in a partition suit, a right enures to the plaintiff to apply for a final decree for division of the suit property by metes and bounds; that whenever an application is made to enforce a right or seeking any relief, such application is governed by the law of limitation; that an application for  3

drawing up a final decree would be governed by the residuary Article 137 of Limitation Act, 1963 (`Act’ for short) which provides a period of limitation of three years; that as such right to apply accrues on the date of the preliminary decree, any application filed beyond three years from the date of preliminary decree (that is 12.3.1964) or at all events beyond three years from the date when the High Court dismissed the defendant’s appeal (that is 29.3.1974) would be barred by limitation. Reliance was placed by the petitioner on the decision of this Court in Sital Parshad v. Kishori Lal [AIR 1967 SC 1236], the decision of the Privy Council in Saiyid Jowad Hussain v. Gendan Singh [AIR 1926 PC 93] and a decision of the Patna High Court in Thakur Pandey v. Bundi Ojha [AIR 1981 Patna 27] in support of his contention.

The issue:

 

4. `Partition’ is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. A partition of a property can be only among those having a  4

share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. `Separation of share’ is a species of ‘partition’. When all co-owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff’s share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/properties should be divided by metes and bounds?

5. In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and  5

whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as `decree’ under Order 20 Rule 18(1) and termed as `preliminary decree’ under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2). The question is whether the provisions of Limitation Act are inapplicable to an application for drawing up a final decree.

 

6. Rule 18 of Order 20 of the Code of Civil Procedure (`Code’ for short) deals with decrees in suits for partition or separate possession of a share therein which is extracted below:

"18. Decree in suit for partition of property or separate possession of a share therein.– Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, –

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this  6

behalf, in accordance with such declaration and with the provisions of section 54;

(2) if and in so far as such decree relates to any other immovable property or to movable property, 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."

The terms ‘preliminary decree’ and ‘final decree’ used in the said rule are defined in Explanation to section 2(2) of the Code and reads thus : "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 completely disposes of the suit. It may be partly preliminary and partly final."

Section 54 of the Code dealing with partition of estate or separation of share, relevant for purposes of Rule 18(1) reads thus: "Where the decree is for the partition of an undivided estate assessed to the payment of revenue of the government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted sub-ordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates."

Rule 13 of Order 26 of the Code dealing with Commissions to make partition of immovable property, relevant for purposes of Rule 18(2) reads thus :

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"Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree."

7. We may now turn to the provisions of the Limitation Act, 1963. Section 3 of the Act provides that subject to sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed. The term ‘period of limitation’ is defined as the period of limitation prescribed for any suit, appeal or application by the Schedule to the Act (vide clause (j) of section 2 of the Act). The term "prescribed period" is defined as the period of limitation computed in accordance with the provisions of the said Act. The Third Division of the Schedule to the said Act prescribes the periods of limitation for Applications. The Schedule does not contain any Article prescribing the limitation for an application for drawing up of a final decree. Article 136 prescribes the limitation for execution of any decree or order of civil court as 12 years when the decree or order becomes enforceable. Article 137 provides that for any other application for which no period of limitation is provided elsewhere in that division, the period of limitation is three years which would begin to run from the time when the right to apply accrues. It is thus clear that every application which seeks to  8

enforce a right or seeks a remedy or relief on the basis of any cause of action in a civil court, unless otherwise provided, will be subject to the law of limitation. But where an application does not invoke the jurisdiction of the court to grant any fresh relief based on a new cause of action, but merely reminds or requests the court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation. Such an application in a suit which is already pending, which contains no fresh or new prayer for relief is not one to which Limitation Act, 1963 would apply. These principles are evident from the provisions of the Code and the Limitation Act and also settled by a series of judgments of different High Court over the decades (See : for example, Lalta Prasad vs. Brahma Din [AIR 1929 Oudh 456], Ramabai Govind v. Anant Daji [AIR 1945 Bom. 338], Abdul Kareem Sab vs. Gowlivada S. Silar Saheb [AIR 1957 AP 40], A. Manjundappa v. Sonnappa & Ors. [AIR 1965 Kar. 73], Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors. [AIR 1983 Orissa 121], Laxmi v. A.Sankappa Alwa [AIR 1989 Ker. 289]. We may also draw support from the judgments of this Court in Phoolchand vs. Gopal Lal[AIR 1967 SC 1470], Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors. [2007 (2) SCC 355] and Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare [2008 (8) SCC 198].  9

 

8. Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division. This duty in the normal course has to be performed by the court itself as a continuation of the preliminary decree. Sometimes either on account of the pendency of an appeal or other circumstances, the court passes the decree under Rule 18(1) or a preliminary decree under Rule 18(2) and the matter goes into storage to be revived only when an application is made by any of the parties, drawing its attention to the pending issue and the need for referring the matter either to the Collector or a Commissioner for actual division of the property. Be that as it may.

9. The following principles emerge from the above discussion regarding partition suits :

9.1) In regard to estates assessed to payment of revenue to the government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the  10

court in regard to the shares of various parties and deliver the respective portions to them, in accordance with section 54 of Code. Such entrustment to the Collector under law was for two reasons. First is that Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of government in regard to revenue. (The second reason, which was very important in the 19th century and early 20th century when the Code was made, has now virtually lost its relevance, as revenue from agricultural lands is negligible). Where the Collector acts in terms of the decree, the matter does not come back to the court at all. The court will not interfere with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby.

9.2) In regard to immovable properties (other than agricultural lands paying land revenue), that is buildings, plots etc. or movable properties: (i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds.

(ii) where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary  11

decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usually an Engineer, Draughtsman, Architect, or Lawyer) to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds.

The function of making a partition or separation according to the rights declared by the preliminary decree, (in regard to non-agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.

9.3) As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of  12

the suit. The suit continues to be pending until partition, that is division by metes and bounds, takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act). It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.

10. The three decisions relied on by the petitioner (referred to in para 3 above) are not relevant for deciding the issue arising in this case. They all relate to suits for mortgage and not partition. There is a fundamental difference between mortgage suits and partition suits. In a preliminary decree in a mortgage suit (whether a decree for foreclosure under Rule 2 or a decree for sale under Rule 4 of Order 34 of the Code), the amount due is determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non payment within the time stipulated is also specified. A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in  13

the event of non payment of the amount. When the amount is not paid the plaintiff gets a right to seek a final decree for foreclosure or for sale. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court. In fact several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree. A preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus the application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds. Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage  14

suit. Consequently an application for a final decree in a mortgage suit is different from an application for final decree in partition suits. A suggestion for debate and legislative action

11. The century old civil procedure contemplates judgments, decrees, preliminary decrees and final decrees and execution of decrees. They provide for a `pause’ between a decree and execution. A ‘pause’ has also developed by practice between a preliminary decree and a final decree. The `pause’ is to enable the defendant to voluntarily comply with the decree or declaration contained in the preliminary decree. The ground reality is that defendants normally do not comply with decrees without the pursuance of an execution. In very few cases, the defendants in a partition suit, voluntarily divide the property on the passing of a preliminary decree. In very few cases, defendants in money suits, pay the decretal amount as per the decrees. Consequently, it is necessary to go to the second stage that is levy of execution, or applications for final decree followed by levy of execution in almost all cases.

12. A litigant coming to court seeking relief is not interested in receiving a paper decree, when he succeeds in establishing his case. What he wants is relief. If it is a suit for money, he wants the money. If it is a  15

suit for property, he wants the property. He naturally wonders why when he files a suit for recovery of money, he should first engage a lawyer and obtain a decree and then again engage a lawyer and execute the decree. Similarly, when he files a suit for partition, he wonders why he has to first secure a preliminary decree, then file an application and obtain a final decree and then file an execution to get the actual relief. The common-sensical query is: why not a continuous process? The litigant is perplexed as to why when a money decree is passed, the court does not fix the date for payment and if it is not paid, proceed with the execution; when a preliminary decree is passed in a partition suit, why the court does not forthwith fix a date for appointment of a Commissioner for division and make a final decree and deliver actual possession of his separated share. Why is it necessary for him to remind the court and approach the court at different stages?

 

13. Because of the artificial division of suits into preliminary decree proceedings, final decree proceedings and execution proceedings, many Trial judges tend to believe that adjudication of the right being the judicial function, they should concentrate on that part. Consequently, adequate importance is not given to the final decree proceedings and  16

execution proceedings which are considered to be ministerial functions. The focus is on disposing of cases, rather than ensuring that the litigant gets the relief. But the focus should not only be on early disposal of cases, but also on early and easy securement of relief for which the party approaches the court. Even among lawyers, importance is given only to securing of a decree, not securing of relief. Many lawyers handle suits only till preliminary decree is made, then hand it over to their juniors to conduct the final decree proceedings and then give it to their clerks for conducting the execution proceedings. Many a time, a party exhausts his finances and energy by the time he secures the preliminary decree and has neither the capacity nor the energy to pursue the matter to get the final relief. As a consequence, we have found cases where a suit is decreed or a preliminary decree is granted within a year or two, the final decree proceeding and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system. Courts and Lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits.

17

 

14. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant. We hope that the Law Commission and Parliament will bestow their attention on this issue and make appropriate recommendations/amendments so that the suit will be a continuous process from the stage of its initiation to the stage of securing actual relief. The present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements. If there is a practice of assigning separate numbers for final decree proceedings that should be avoided. Issuing fresh notices to the defendants at each stage should also be avoided. The Code of Civil Procedure should provide for a  18

continuous and seamless process from the stage of filing of suit to the stage of getting relief. In money suits and other suits requiring a single decree, the process of suit should be a continuous process consisting of the first stage relating to determination of liability and then the second stage of execution and recovery, without any pause or stop or need for the plaintiff to initiate a separate proceedings for execution. In suits for partition and other suits involving declaration of the right and ascertainment/quantification of the relief, the process of the suit should be continuous, consisting of the first stage of determination and declaration of the right, second stage of ascertainment/division/quantification, and the third stage of execution to give actual relief.

Conclusion

 

15. In so far final decree proceedings are concerned, we see no reason for even legislative intervention. As the provisions of the Code stand at present, initiation of final decree proceedings does not depend upon an application for final decree for initiation (unless the local amendments require the same). As noticed above, the Code does not contemplate filing an application for final decree. Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing  19

dates for further proceedings till a final decree is passed. It is the duty and function of the court. Performance of such function does not require a reminder or nudge from the litigant. The mindset should be to expedite the process of dispute resolution.

 

16. In view of the foregoing, we are of the view that the application filed by the plaintiff in this case for drawing up of a final decree, was rightly held to be not subject to any period of limitation. We therefore dismiss this special leave petition as having no merit, with a request to expedite the final decree proceedings.

………………………..J.

(R. V. Raveendran)

……………………….J.

(B. Sudershan Reddy)

New Delhi;

August 21, 2009.

20

Court held yes – since holistically in partition suit there are no judgment debtors and strict bifurcation of parties and their role is obliterated to a great extent, if the defendant seeks to bring more properties by way of amendment to protect the suit from being bad on account of partial partition – court may consider it and if it finds the same necessary for the determining the real questions in controversy as well as deciding the matter with a finality – shall be allowed.

Madras High Court

DATED: 16.11.2011

CORAM

THE HONOURABLE MR.JUSTICE D.MURUGESAN

AND

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN

C.R.P.(PD) No.3006 of 2010

1. Solavaiammal

W/o Ettiappa Goundar

2. Parvathy

W/o Ezhumalai

3. Shanmugam

S/o Ettiappa Goundar

4. Rathnam

S/o Ettiappa Goundar .. Petitioners

-vs-

1. Ezhumalai Goundar

S/o Ettiappa Goundar

2. Valliammal

S/o Venugopal .. Respondents

Memorandum of Grounds of Civil Revision Petition under Article 227 of The Constitution of India against the fair and decretal order dated 05.02.2010 passed in I.A.No.264 of 2009 in O.S.No.31 of 2007 on the file of the Sub Court, Madurantagam. For Petitioners :: Mr.K.Govi Ganesan

For Respondents :: Mr.J.Sudhakaran for

Mr.M.Arunachalam for R1

ORDER

D.MURUGESAN, J.

The question raised in this civil revision petition is as to whether under Order VI, Rule 17 of the Civil Procedure Code, amendment of the plaint in a partition suit can be allowed at the instance of the defendants?

2. The said question has been referred to for a decision by the Division Bench by The Hon’ble Mr.Justice M.Duraiswamy vide order dated 16.3.2011 and the reference necessitated in view of the conflicting views given by two learned Judges of this Court in the decisions in Ramasamy and another v. P.Marappan and others, 2005 (3) MLJ 663 and in A.A.Ganga and another v. A.R.Usha and others, 2010 (4) CTC 331.

3. In a suit for partition filed by the plaintiffs in O.S.No.31 of 2007 on the file of the Subordinate Court, Madurantagam, the defendants, namely the revision petitioners, filed I.A.No.264 of 2009 under Order VI, Rule 17 of the Civil Procedure Code seeking for amendment of the plaint on the ground that some of the joint family properties were left out by the plaintiffs for partition. After hearing both sides, the learned trial Judge dismissed the application holding that the defendants cannot seek for amendment of the plaint. The said order is put in issue in this civil revision petition.

4. In the judgment in Ramasamy v. P.Marappan, 2005 (3) MLJ 663, the learned Judge R.Banumathi, J. held that under Order VI, Rule 17 of the Civil Procedure Code, a party can seek to amend his pleadings in plaint or written statement, but a party cannot seek to amend the pleadings of his opponent. So far as the amendment of plaint is concerned, the learned Judge has held that as the plaintiff is the dominant litus and he cannot be compelled to include other items of properties in the plaint schedule in a partition suit. The learned Judge was of the view that if the petition mentioned properties which are sought to be included in the plaint schedule are proved to be joint family properties, the suit would only be bad for partial partition. Holding so, the learned Judge upheld the order of the trial Court in dismissing the application to amend the plaint.

5. Subsequently, when the very same question came up for consideration before R.S.Ramanathan, J., the learned Judge, after referring to the judgment in Ramasamy case, held that such an application for amendment in a partition suit at the instance of the defendant is maintainable, since, in a suit for partition, the plaintiff is defendant and the defendant is plaintiff, and therefore the defendant is entitled to include the property left out by the plaintiff so as to have a complete adjudication and to avoid further litigation.

6. Before we consider the issue raised in this civil revision petition, the relevant provision of Civil Procedure Code, viz., Order VI, Rule 17 requires a reference and the same reads thus:

17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

7. The scope of Order VI, Rule 17 of the Civil Procedure Code came up for consideration before the Apex Court and the Apex Court ultimately held as follows in the following judgments.

8. In the judgment in Revajeetu Builders and Developers v. Narayanasamy and sons and others, (2009) 10 SCC 84, the Apex Court after analysing critically both the English and Indian cases on the point, deduced the following basic principles to be taken into consideration by the Courts while allowing or rejecting the application for amendment: (i) whether the amendment sought is imperative for proper and effective adjudication of the case;

(ii) whether the application for amendment is bona fide or mala fide;

(iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(iv) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(vi) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by the law of limitation on the date of application.

In fact, the Apex Court held that the Courts have very wide discretion in the matter of amendment of pleadings, but Court’s powers must be exercised judiciously and with great care. While deciding applications for amendments the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.

9. In Vidyabai and others v. Padmalatha and another, (2009) 2 SCC 409, the Apex Court held that it is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code would restrict the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.

10. In B.K.Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712, the Apex Court held as follows:

3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

11. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (died) by L.Rs., (2008) 8 SCC 511, the Apex Court held thus:

In so far as the principles which govern the question of granting or disallowing Amendments under Order 6, Rule 17, C.P.C. (as it stood at the relevant time) are concerned, these are well settled. Order 6, Rule 17, C.P.C., postulates amendment of pleadings at any stage of the proceedings. In Piragonda Hongonda Patil v. Kalgonda Shidgonda Patil, which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.

12. A learned Judge of this Court in Vaidinatha Chettiar and others v. Thirumalai Reddyar, AIR 1934 Madras 220 held that where the Court compels the plaintiff to amend the plaint, only the plaintiff can complain; and it is not open to the defendant to complain that the Court has no jurisdiction to compel the plaintiff to do so.

13. In T.P.Palaniswami and another v. Deivanaiammal and others, 96 L.W. 560, a learned Judge of this Court has held as follows:

3. Negligence or carelessness, or belatedness, need not be put against a party seeking amendment if the facts and circumstance of the case warrant the allowing of the amendment for the purpose of adjudicating the controversy between the parties comprehensively in the same lis.

4. It is well settled that while deciding an application for amendment, the court is not supposed to go into the merits and demerits of the amendment and express an opinion one way or the other. That could be the subject matter of scrutiny after the amendment is allowed, applying the well accepted principles therefor, and after the defendant files the additional written statement and after appropriate additional issue is framed and that issue is tried after the parties placed the requisite evidence therefor and submitted arguments in support of their respective cases.

7. Under Order 6, Rule 17 of the Code, the court may, at any stage of the proceedings, allow either party to amend his pleadings and all such amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties. In a suit for partition, the quantum of the estate is a question in issue and if there had been inadvertence or omission to include a particular item, the court is duty bound to allow the amendment and while doing so, it will be inappropriate to adjudicate upon the questions which would arise on the amendment being allowed and that stage will come only later, after the amendment is allowed, issues are framed and the parties placed their evidence and made their submissions through arguments.

14. In P.Arumugham and another v. P.Balasubramaniam and others, (2008) 7 MLJ 1210, a learned Judge of this Court has held as follows:

Merely because the plaintiff owing to some motive or as per his own stand did not include certain items in the suit property, it would not lead to the conclusion that the suit is bad for partial partition. There are instances where the parties would deliberately leave certain items of properties, without any valid reasons for getting it divided at once, but to get them divided at a later date at their own whims and fancies and in such a case, the Court could hold that the suit is bad for partial partition. Even in such cases, the Courts have got the power to direct that the left out items also should be included in the partition, once there are evidence available on record that those items are co-parcenary properties.

15. Keeping the above principles in mind, the question raised in this civil revision petition is to be considered. Though a plain reading of Order VI, Rule 17 of the Code of Civil Procedure would appear that only a party to the plaint or written statement, as the case may be, could seek for amendment on the ground that such a party would be the dominant litus, it will be only a general rule in respect of all suits barring a suit for partition. In terms of Order VI, Rule 17, only the respective party to the pleadings could seek for amendment, as they are referred to as the plaintiff or defendant, as the case may be. In a partition suit, both the plaintiff and defendant are considered to be on the same pedestal to seek for a decree. This distinction is made by Courts. The application of Order VI, Rule 17 insofar as partition suits shall be considered keeping the above in mind.

16. While an amendment is sought, the Court has to see whether such amendment is imperative for proper and effective adjudication of the case, the amendment is bona fide or mala fide and in case such amendment is ordered, whether any prejudice would be caused to the other party which cannot be ultimately compensated in terms of money. The Court must also consider as to whether in the event the amendment is refused, it may lead to injustice or multiple litigation. One more principle to be followed while considering the request for amendment is as to whether it would change the character or nature of the case.

17. In a suit for partition, in the event the plaintiff has included only certain properties as if they are available for partition and leave some other properties which are also available for partition, the request of the defendant in such event to include the left out properties also in the plaint schedule would not in any way amount to altering or changing the nature or character of the suit, as such an amendment is also necessary for an effective adjudication of the case and to avoid multiplicity of proceedings.

18. It is argued that in the event some of the properties which are available for partition are not included in the plaint schedule, the decree would be invalid on the ground of partial partition. However, it must be kept in mind that in such event, a further suit has to be filed either at the instance of the plaintiff or defendant to include all the properties which are available for partition. In order to avoid such a situation, in partition suit, the Court could certainly entertain an application for amendment to include the properties which are left out and it cannot be said that in the event the amendment petition is dismissed, the decree would be invalid for partial partition. Hence, we hold that in a suit for partition, application for amendment at the instance of either party to the suit is maintainable under Order VI, Rule 17 of the Civil Procedure Code. We may also refer to the judgment of the Apex Court in Shub Karan Bubna alias Shub Karan Prasad Bubna v. Sita Saran Bubna and others, 2009 (12) Scale 259, wherein the Apex Court has observed that a decree in partition suit enures to the benefit of all the co-owners and it is sometimes said that there is really no judgment-debtor in a partition suit.

19. However, in an application for amendment, the Court has to prima facie satisfy itself as to whether the properties are available for partition or not, as a detailed adjudication on the claim is improper. If there is a dispute over the inclusion of properties by the plaintiff contending that those properties are not available for partition, the Court is certainly entitled to reject the application for amendment on that ground. In such event, the only course open to the defendant is to file a suit for partition by including those properties. As we have been called upon to answer the question as to whether the application under Order VI, Rule 17 of the Civil Procedure Code seeking for amendment of the schedule to the plaint in a partition suit at the instance of the defendant is maintainable or not, we answer the said issue by holding that while considering such an application, it is for the Court to decide on the facts of each case. The reference is answered accordingly. Registry is directed to list the civil revision petition before the concerned learned Judge.

ss

Dated : 8.8.2011

CORAM

The Hon’ble Mr.Justice R.S.Ramanathan

S.A.No.212 of 2011

1. Mr.Malla Naicker @ Singari

2. Mrs.Ramakkal

3. Mr.Nataraj …Appellants/defendants

Vs.

1. Miss. Jeeva (minor)

2. Senthilkumar ( minor)

3. Miss. Tamilselvi … Respondents/plaintiffs

Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 20.8.2007, passed in A.S.No.36 of 2007, on the file of the Additional District Court/Fast Track Court No.4, Bhavani, in reversing the judgment and decree dated 15.7.2004, passed in O.S.No.503 of 2004, on the file of the Second Additional District Munsif Court, Bhavani.

For appellants : Mr.N.Manokaran

For respondents 1 & 2 : Mr.A.K.Kumarasamy

JUDGMENT

The defendants are the appellants herein. The respondents/plaintiffs filed the suit for partition of 3/8 share in the suit property.

 

2. The case of the respondents/plaintiffs was that the first appellant is their paternal grandfather and the second appellant is their paternal grandmother and the third appellant is their father. The suit properties are the joint family properties in the hands of the first appellant. As the third appellant, being the father of the respondents/plaintiffs, neglected to maintain them and was leading a wayward life, the mother of the respondents/plaintiffs, is living separately and as the properties are joint family properties, they are also entitled to a share in the properties. Hence, the suit was filed for partition of their 3/8 share in the suit property. It was further stated that the suit properties are purchased out of the income from the joint family properties in the name of the appellants/defendants 1 and 2 and therefore, the suit properties are the ancestral properties in which the respondents/plaintiffs have got their right by birth. Hence, they are entitled to claim their share in the suit properties.

3. The appellants/defendants contested the suit denying the allegations made against the third appellant and further contended that the properties are not joint family properties and they were not purchased out of the joint family nucleus and they are the separate properties of the appellants/defendants. Therefore, the respondents/plaintiffs cannot claim any share in the properties by birth

4. The Trial Court, dismissed the suit holding that no evidence was let in by the respondents/plaintiffs about the ancestral properties that was lying in the hands of the first appellant and no evidence was let in prove the income from the ancestral nucleus and in the absence of any such evidence, adduced by the respondents/plaintiffs, it cannot be stated that the suit properties are purchased out of the income from the joint family properties. Further, the suit properties are purchased in the year 1983, as evidenced by Exs.A1 and A2 whereas, the joint family properties were sold only in the year 1984, as evidenced by Ex.B1. Therefore, it cannot be stated that out of the sale proceeds of the joint family properties, the suit properties are purchased and as the respondents/plaintiffs failed to prove that the joint family was having sufficient ancestral properties, which provided the consideration for purchase of the suit properties, they are not entitled to the relief of partition.

5. The Lower Appellate Court reversed the judgment and decree of the Trial Court and allowed the appeal, holding that, admittedly, the joint family possessed of ancestral properties and D.W.1 viz., the first appellant also admitted in evidence that the suit properties were purchased from the income of the ancestral properties. Therefore, having regard to the admission of the first appellant and also having regard to the fact that the ancestral properties was having nucleus, it can be presumed that the ancestral properties provided consideration for the purchase of the suit properties. Hence, the respondents/plaintiffs are entitled to a share in the suit properties and allowed the appeal and decreed the suit. Being aggrieved by the same, this Second Appeal has been filed.

6. The following substantial questions of law were framed at the time of admission of the Second Appeal:-

i) Whether the Lower Appellate Court has rightly placed the burden of proof for arriving at a conclusion that the suit properties are ancestral properties?

ii) Whether the respondents/plaintiffs are entitled to get the decree for partition, when they failed to prove that the ancestral properties provided the consideration for the purchase of the suit properties?

iii)Whether the Lower Appellate Court is right in holding that the suit properties are joint family properties?

7. The learned counsel appearing for the appellants Mr.N.Manokaran, submitted that the Lower Appellate Court, without properly appreciating the evidence of D.W.1 in its entirety, erred in holding that D.W.1 admitted that the suit properties were purchased from and out of the income from the ancestral properties and in the same cross-examination, he has corrected his earlier version and submitted that he purchased the property from and out of his business income. The learned counsel therefore submitted that the Courts below ought to have read the evidence as a whole and should not rely upon some stray sentences and D.W.1 has clearly sated that out of his own income, the suit properties were purchased in his name and in the name of his wife. D.W.1, has also stated that there was no income from the ancestral properties and he was getting only meager income from 60 cents of property, which was his ancestral properties and that was not sufficient to run the family and without considering all these aspects, the Lower Appellate Court erred in holding that D.W.1 has admitted in evidence that the suit properties were purchased from the income of the ancestral properties.

8. The learned counsel for the appellants further submitted that even according to the case of the respondents/plaintiffs that by selling the ancestral properties, the suit properties are purchased and it was demonstrated that the ancestral properties was sold in the year 1984, as per Ex.B1, whereas, the suit properties were purchased in the year 1983 and therefore, the sale proceeds of the ancestral properties would not have provided the consideration for the purchase of the suit properties.

9. The learned counsel for the appellants also submitted that the burden is on the co-parcener to prove that the properties in the name of other co-parcener is the coparcenary property and not a separate property of that co-parcener and any person claiming that the properties are the joint family properties has to prove the existence of joint family properties and the income derived from that joint family properties, which would have provided the consideration for the purchase of the other properties. In this case, the respondents/plaintiffs failed to discharge the burden cast on them, by adducing evidence and the Lower Appellate Court wrongly cast the burden on the appellants/defendants and held that the properties are the joint family properties and therefore, the judgment of the Lower Appellate Court is liable to be set aside. He also relied upon the following reported judgments in support of his contention:-

1.(1979) Madras 1 in the case of [ The Additional Commissioner of Income Tax, Madras Vs. Mr.P.L.Karuppan Chettiar],

2.(1998) 2 Law Weekly 259 in [ The Commissioner of Income Tax Vs. Mr.P.L.Karuppan Chettiar],

3. (2001) I C.T.C. 132 in the case of [ Mr.Ramaswamy and another Vs. Mr.R.Murugan],

4. (2003) 10 S.C.C. 310 in the case of [Mr.D.S.Lakshmaiah and another Vs. Mr.L.Balasubramanyam and another],

5. (2005) 3 Law Weekly 627 in the case of [ Mr.P.R.Kannaiyan (died) and 7 others Vs. Ramasamy Mandiri S/o Govinda Mandiri and 10 others]

6.A.I.R. (2007 ) S.C. 1808 in the case of [Makhan Singh (Died) by Lrs. Vs. Kulwant Singh]

and

7.(2007) 4 M.L.J. 993 in the case of [Mr.N.Ramachandran Vs. E.Varadarajan and another]

 

10. Per contra, Mr.A.K.Kumarasamy, the learned counsel appearing for the respondents submitted that the existence of the ancestral property was proved by Ex.B1 and the first appellant is the Kartha of the joint family and he has not let in any evidence to show that he had independent income and as per Ex.B1, the joint family was possessed of 63 cents with irrigation facilities. He further submitted that no evidence was adduced by the first appellant about his personal income and therefore, the Lower Appellate Court has rightly drawn a legal presumption that the suit properties were purchased out of the joint family properties’ income and the first appellant also admitted in evidence that the properties were purchased from and out of the income of the joint family properties and having regard to all these aspects, the Lower Appellate Court has rightly decreed the suit.

11.Heard both sides.

12. The presumption regarding the coparcenary property vis-a-vis separate property and the person on whom the burden lies has been succinctly stated in Mulla Hindu Law, 17th Edition Volume 1, Page 344 in paragraph No.233 as follows:-

1) Presumption that a joint family continues joint –

2)There is no presumption that a joint family possesses joint property-

" To render the property joint, the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. It can be brought to the cognizance of a Court in the same way, as any other fact, namely, by evidence. Where it is established or admitted that the family possessed some joint property which, from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without the aid of the joint family. However, no such presumption would arise if the nucleus is such that with its held the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its held the property claimed to be joint could have been acquired. " The wide proposition that once the ancestral nucleus is proved or admitted the onus on the member to prove that the property acquired was his self-acquisition cannot be accepted as correct. The existence of some nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What is to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made? Alternatively, this may be shown from the nature and relative value of the nucleus itself. This is the second phase in the onus of proof, which lies on the person, who sets up the family character of the property. Where, however, the existence of the nucleus is shown and no other source of income is disclosed the presumption may be made that the nucleus was sufficient to enable the property to be acquired. Such being the presumption, if any member of the family claims any portion of the property, as his separate property, the burden lies upon him in any such case to that it was acquired by him in circumstances which would constitute it is separate property. He may do so by showing that the income of the existing ancestral property was employed in other ways, or was kept intact. If he adduces no evidence, the presumption that the property was joint family property, must prevail. The mere fact that it was purchased in his name and that there are receipts in his name respecting it does not render the property his separate property for all that is perfectly consistent with the notion of its being joint property. However, if, in addition to the fact that certain property stands in the name of one of the members, A, B, there be these further facts, namely that some other member of the family had acquired separate property with their own moneys and dealt with it as their own without reference to the rest of the family, and that, A, B, was allowed by the family to appear to the word to be the sole owner, the presumption that the property is joint is weakened, and the burden of proving that it is joint will lie on those who allege that it is joint. There is no presumption in case of property standing in the name of female members. In the case of a Kartha or a manager, who managed the family affairs, or was in possession of sufficient joint family assets, the onus would be on such Kartha to prove that the acquisition made by him was without the aid of such joint family assets."

13. Therefore, bearing in mind the aforesaid principles, we shall see the evidence available in this case. As stated supra, the first appellant is the Kartha of the joint family and Ex.B1, also proves that the joint family possessed of nucleus. As per Ex.B1, the property is an agricultural property, having irrigation facilities. Therefore, having regard to the fact that the first appellant is the Kartha of the family and the properties were purchased in his name and in the name of his wife, the burden is on the Kartha to prove that the properties stands in his name are his self acquired properties and they were not purchased out of the income from the joint family properties.

14. Further, it was stated in the written statement that the properties were purchased by the appellants 1 and 2 out of their own income derived from their business. To prove the same, D.W.1 has stated that he was doing business in paddy, groundnut etc., and except the statement made in the chief examination, no proof was adduced by him to show the business run by him or the income derived from that business. Evidence of D.W.1 was that, he purchased the suit properties out of his personal earnings and he was doing business in paddy groundnut etc., On the other hand, Ex.B1, sale deeds discloses that the properties sold by them under Ex.B1, belongs to the appellants 1 and 2, as ancestral properties and the third appellants got the properties as a self acquired one.

15. Therefore, in Ex.B1, the first and third appellants admitted the fact that the properties belonged to them ancestrally and it was not stated that it was their separate properties. Further, in Exs.A1 and A2, viz., the sale deeds in the name of the appellants 1 and 2, they were described as agriculturists and it was not stated that they are doing any business. Therefore, except the oral evidence of D.W.1 that he was doing business in paddy and groundnut, no other evidence was made available with the appellants/defendants to prove that out of their personal income, the suit properties were purchased. D.W.2 has given evidence, corroborating the evidence of the first appellant about the business conducted by him and he also admitted that from the ancestral properties, the family would get four bags of rice per annum and except his oral evidence, there is no documentary evidence to prove that the first appellant was doing any business.

16. Further, in Ex.B1, it was stated that sale was necessitated to meet the family expenses and also to develop the properties. Thus, the recitals in Ex.B1, not only proved the existence of ancestral nucleus, which was sold, but also proved that they are having the suit properties and to develop the same, the ancestral properties were sold. Further, the properties were sold to meet the family expenses and if really, sufficient income was derived from the business of the first appellant, as stated by him and D.W.2, there was no necessity for the first appellant to sell the ancestral properties under Ex.B1, to meet the family expenses and to develop their properties. Therefore, the recitals in Ex.B1, falsifies the case of the first appellant that except that property, there was no other ancestral properties and there was no income from that property.

17. Therefore, having regard to the presumption as per the law laid down by the Hon’ble Supreme Court as well as our High Court as referred to above, and as stated in Mulla Hindu Law that when a Kartha claims certain properties as a separate properties and the joint family admittedly possessed of some nucleus, the burden is on the Kartha to prove that the properties are his separate properties and not purchased out of the joint family properties’ income. On the other hand, if the co-parcener claims certain properties as his separate properties, then the burden is cast on the other co-parcener, who claims that the property is a joint family property to prove that property purchased in the name of one of the co-parceners was purchased out of the joint family properties’ income and it was not a separate property.

18. Therefore, the law recognizes two standards of burden of proofs, one for the Kartha of the joint family and another for a co-parcener, when they claim that certain properties are their separate properties and not joint family properties. Admittedly, the joint family possessed of some nucleus, eventhough no evidence was adduced by the respondents/plaintiffs about the nature of income from that nucleus, in the absence of any source of independent income by the other co-parcener, in whose name, the property was purchased, it can be presumed that the joint family properties would have provided the consideration for the purchase of the suit properties.

19. As a matter of fact, this principles of law was also reiterated in the judgment reported in A.I.R. (2007 ) S.C. 1808 ( cited supra) which is extracted hereunder:-

 The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available”

20. In the judgment reported in ( 2005) 3 Law Weekly 627 ( cited supra) the Hon’ble Division Bench, after discussing the two judgments reported in (2003) 10 S.C.C. ( cited supra) 310 and A.I.R. 1961 S.C. 1268, in [ Mallesappa Bandeppa Desai and another Vs. Desai Mallappa @ Mallesappa and another] has held as follows:-  From the decisions of the Supreme Court in A.I.R. 1961 S.C. 1268 (cited supra)A.I.R. 1977 Madras 171 in [Mr.Sankaranarayanan and another Vs. The Official Receiver, Tirunelveli and others] and also from the observations made by the Allahabad High Court in A.I.R. 1950 Allahabad 54 in [ Bhagwant Kishore and another Vs. Bishambhar Nath and others] and in Maynes Treatise on Hindu Law and usage, and all other decisions noticed above, it is apparent that no exception is carved out in the matter relating to acquisition in the name of Kartha, where it is proved that Kartha had no independent income and he is in possession of some nucleus and not necessarily sufficient nucleus of the joint family property. In such a case, even where sufficient nucleus is not proved but existence of some nucleus is proved and it is further proved that Karta or Manager, in whose name property had been purchased, had no independent income, the burden is shifted to Karta to prove that the property has been acquired without the aid of the joint family and with the own separate income of the Karta or the Manager. We hasten to add that such principle is inapplicable, where it is shown that Kartha has some separate and independent income, in which event, the normal principle that it is for the person claiming a particular acquisition that there was sufficient surplus from the joint family property from out of which the property in question could have been acquired."

21. In the judgment reported in (2003) 10 S.C.C. 310, ( cited supra) the said principle was also reiterated, which is extracted hereunder:-

" The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available”

22. The other judgments relied upon by the learned counsel for the appellants is not applicable to the fact of the case on hand. Therefore, having regard to the fact that the joint family possessed of ancestral properties and the appellants failed to prove through satisfactory evidence that they were running a separate business from which they have derived income and the fact that the first appellant is the Kartha of the joint family and the properties were purchased in his name and in the name of his wife, the legal presumption is that the ancestral properties must have provided the nucleus and the burden is on the Kartha to prove that the properties were not purchased from out of the income derived from the joint family and it was purchased from his own income.

23. In this case, no evidence was let in by the appellants/defendants about their independent income and in such circumstances, the Lower Appellate Court has rightly held that the appellants failed to prove their independent income and when the joint family possessed of certain property, that would have provided the nucleus and the Lower Appellate Court correctly applied the law and set aide the judgment and decree of the Trial Court. Hence, the substantial questions of law are answered against the appellants

24. In the result, the Second Appeal is dismissed and the judgment and decree of the Lower Appellate Court is hereby confirmed. In the circumstances, there shall be no order as to costs.

 

My father died in January’2010 without any will. We are 3 brothers (all married, I am a son), 4 sisters (2-unmarried, all aged above 40) and mother. Father had two houses in two different states. Our family is residing in one house. There are two issues: (i) Mother and my two elder brothers do not want to share property with me and sisters. They also plan to dis-locate two un-married sisters from my father’s house. In this situation: what are our legal options? What are the steps we should take to ensure that our property is safe and sisters are not evicted from there? (ii) The second house is vacant for last 6-7 years. The eldest brother plans to move into that house and occupy it without any-body’s consent. What steps we must take to stop this?

Thanks
Harsh Singh

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