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CASE NO.: Appeal (civil)  2508 of 1997

PETITIONER: Rachakonda Venkat Rao and Ors.        

RESPONDENT: R. Satya Bai (D) By LR. And Anr.                 

DATE OF JUDGMENT: 11/09/2003

BENCH: BRIJESH KUMAR & ARUN KUMAR.

JUDGMENT: JUDGMENT

ARUN KUMAR, J

        This appeal is directed against an order dated 19th  June, 1998 of the High Court of Andhra Pradesh whereby  the order of the trial court rejecting an application of the  plaintiff under Order XXVI Rules 13 and 14 read with Section  151 of the Code of Civil Procedure was set aside and the  trial court was directed to take steps towards passing a final  decree.  Briefly the facts are :         Parties to the suit are closely related being members of  a family of four brothers.  Plaintiff No.1 was the widow of the  eldest brother.  On 14th May, 1975 she filed a suit for  partition of the joint family immoveable properties  in the  court of the District Judge, Adilabad (A.P.).  Plaintiff No.2 is  the daughter of plaintiff No.1. Defendants are younger  brothers of husband of plaintiff No.1 and members of their  families.  During the pendency of the suit, parties arrived at a  compromise.  A joint application was filed under Order XXIII  Rule 3 CPC praying that the compromise be recorded and a  decree in terms of the compromise be passed.  The learned  District Judge passed the decree on 13th July, 1978 on the  basis of the said compromise application.         The entire controversy in the present appeal revolves  around the decree dated 13th July, 1978.  The question is  whether the said decree was a final decree or a preliminary  decree. Defendants are the appellants in this appeal while  plaintiff is the respondent.  We will refer to the parties as  plaintiff and defendants.   On 20th September, 1991 plaintiff No.2 (plaintiff No.1 had  died in the meanwhile) moved an application under Order  XXVI Rules 13 and 14 read with Section 151 CPC praying  that a Commissioner be appointed to divide the joint  properties by metes and bounds and to allot separate shares  as per the decree dated 13th July, 1978. In the  body of the  affidavit filed in support of the said application, the plaintiff  stated that  she had been put in separate possession of  properties at Serial Nos. 1,2,3 and 5 in Schedule -I to the  decree dated 13th July, 1978 while properties at Serial Nos.  4,6 and 7 were put in joint possession. According to the  plaintiff, a Commissioner had to be appointed in pursuance  of the decree to divide the joint properties as per shares of  parties by metes and bounds and to allow separate  possession and enjoyment thereof.  Only defendant No.1  filed a reply to the said application opposing the same.   According to the defendant with the passing of the decree  dated 13th July, 1978 pursuant to the compromise arrived at

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between the parties, the final partition had taken place and  nothing remained for taking any further steps for partition.   He averred that in view of change in  value of the properties  with the passage of time,  the plaintiff was trying to wriggle  out of the decree  dated 13th July, 1978.  In October, 1985 in  view of such an attitude of the plaintiff a further arrangement  had taken place between the parties.  The said arrangement  had also been acted upon.  Even during the pendency of the  application, a compromise in writing had taken place  between the parties on 5th July, 1992.  It was a  Memorandum of family arrangement to which the plaintiff  was a party.  The same had been arrived at in the presence  of parties and others including some advocates.  The  defendant pleaded that in view of the subsequent  developments, the court may pass a  decree in accordance  with the Memorandum of family arrangement executed  between the parties. In any case as per the stand of the  defendant, the application under reply was not maintainable  and was also hopelessly barred by time having been made  more than 12 years after the decree dated 13th July, 1978.   The learned District Judge framed the following points for  consideration for deciding the application  : 1.      Whether the application is maintainable under law? 2.      Whether there was any settlement between the  parties subsequent to the passing of the compromise  decree and for that reason the petitioner is not  entitled to ask for appointment of Commissioner for  the purpose of further division by metes and bounds? 3.      To what relief ? The trial court recorded oral evidence on the said  application.  The defendants examined five witnesses.  The  plaintiff however did not examine herself nor she lead any  documentary evidence. Defendants also proved certain  documents on record.  The stand of the defendants is clear.   According to them nothing  remained for taking any further  steps by the court which means that according to defendants  the decree dated 13th July, 1978 was a final decree and  therefore such an application was not maintainable.   Defendants lead oral evidence regarding October, 1985 oral  settlement between the parties which was said to have been  also acted upon.   They led evidence regarding the 5th July,  1992 settlement by way of  Memorandum of family  arrangement.  The learned District Judge dismissed the  plaintiff’s application by order dated 4th February, 1993.  The  application was held to be not maintainable.  The learned  District Judge accepted the 1985 arrangement by way of  mutual agreement between the parties and stated that the  said arrangement had been acted upon.  The District Judge,  however, did not take into consideration the subsequent  family arrangement dated 5th July, 1992 because it was  alleged to have taken place after the application under  consideration had already been moved.   The plaintiff filed a revision petition under Section 115  CPC in the High Court against the order of the District Judge  dated 4th February, 1993. The High Court by its impugned  judgment dated 19th June, 1996 allowed the Civil Revision  Petition setting aside the order of the District Judge.  The  High Court treated the decree dated 13th July, 1978 as a  preliminary decree and, therefore, it entertained the  application for final decree.  The High Court rejected the  evidence led by defendants to establish the oral agreement  of 1985.  It weighed with the High Court that even as per  defendant No.1 the oral arrangement of 1985 stood  superseded by an arrangement of 1992.  The High Court  further noted that according to both the parties the 1985

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arrangement did not survive.  The July, 1992 arrangement  was rejected also on the ground that it was not signed by all  the parties.  It was signed only by three parties. In addition,   it was observed that the said document was neither  properly  stamped nor it was registered. The High Court refused to  accept that the decree dated 13th July, 1978 stood satisfied  for the reason that satisfaction of the decree had not been  recorded in accordance with provisions of Order XXI Rule 2  CPC.  For all these reasons, the High Court directed the trial  court to proceed with the application and take steps for  passing a final decree in the suit.

       The main question for consideration before us is :  whether the decree dated 13th July, 1978 was a final decree  or it was only a preliminary decree?  We have heard learned  counsel for the parties  at length.  We have been taken  through the relevant legal provisions.  The parties’ counsel  cited judgments in support of their respective contentions.   However, we are of the view that the decision of the case  really turns on the interpretation of the compromise  application and the decree dated 13th July, 1978.   Before we   set down to interpret the decree dated 13th July, 1978, we  would like to refer to relevant provisions of the Code of Civil  Procedure.  Sub-section (2) of Section 2 of the Code defines  a decree as : "Sub-section (2) :

"decree" means the formal expression of an  adjudication which, so far as regards the Court  expressing it, conclusively determines the  rights of the parties with regard to all or any of  the matters in controversy in the suit and may  be either preliminary or final.  It shall be  deemed to include the rejection of a plaint and  the determination of any question within  section 144, but shall not include â\200\223

(a)     any adjudication from which an  appeal lies as an appeal from an  order, or

(b)     any order of dismissal for default.

Explanation â\200\223 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."

       The application in question  was moved by the plaintiff  under the provisions of Order XXVI Rules 13 and 14.  They  are reproduced as under :

       " Rule 13 : Commission to make partition  of immovable property â\200\223 Where a  preliminary decree for partition has been  passed, the Court may, in case any 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.

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Rule 14 : Procedure of Commissioner â\200\223 (1)  The Commissioner shall, after such inquiry as  may be necessary, divide the property into as  many shares as may be directed by the order  under which the commission was issued, and  shall allot such shares to the parties, and may,  if authorised thereto by the said order, award  sums to be paid for the purpose of equalizing  the value of the shares.

A bare reading of the definition of the word ’decree’ shows  that : (a)     a decree conclusively determines the rights of the  parties with regard to all or any of the matters in   controversy in the suit; and (b)     a decree may be preliminary or final. The explanation to the sub-section makes it clear that 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.   A decree may be partly preliminary and partly final. It is settled law that there can be more than one  preliminary decrees in a suit.  Similarly, there can be more  than one final decrees in a suit.

       In this background of the legal position, we proceed to  examine the decree dated 13th July, 1978.  The suit in  question was a suit for partition and separate possession of  1/4th share of the plaintiffs in the suit properties.  The  plaintiffs had desired  to be in separate possession of their  share by effecting the partition by metes and bounds.  The  application for compromise which is an admitted document  contains the followings pleadings :

"(1)    That the parties have effected the partition of the  suit schedule immoveable properties.  The  properties which are allotted to each branch of the  family shown in the Schedule as Nos. I to IV. The properties shown in Schedule â\200\223I are allotted to         plaintiff Nos. 1 and 2.          The properties shown in Schedule â\200\223 II are allotted  to  Krishna Rao, defendant No.3 and his branch,  that is, defendants No.3 to 13.                The properties shown in Schedule-III are allotted      to R. Venkat Rao, defendant No.1.                  The properties shown in Schedule â\200\223 IV are allotted  to R. Sudhakar Rao, defendant No.2.   

2.      The parties are put in possession of their  respective shares of immovable properties.

3.      â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦ 4.      â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦ The your honour may be please to accord the  compromise and pass the decree in terms of compromise." With the application, Schedules I to IV were appended  which shows whatever properties were allotted to each  party.  There is no dispute about the application or the  Schedules attached to it regarding distribution of the joint  properties.

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On the said application, the following decree was  passed : "Decree :

The suit coming on before me for final  disposal on 13.7.1978 in the present of Mr.  Ramulu, Advocate for the plaintiffs and of  Mr.R.V. Kishan Rao, Advocate for the  Defendant No.1 and of Mr. P. Sridhar Rao,  Advocate for the Defendant No.2 to 13 and  agreed to compromise the matter of the suit  and they have put into (court) a deed of  compromise praying that this court will pass a  decree in accordance with the term there, this  court, in pursuance of the said deed of  compromise, do order and decree :

1.      That the plaintiffs suit be and  hereby is decreed as against DI  to D13 in terms of the  compromise so far as it relates to  the subject matter of the suit. 2.      That the plaintiffs No.1 and 2 are  allotted the properties shown in  Schedule No.1(in compromise) 3.      That the parties are put in  possession of their respective  share of immoveable properties. 4.      That the defendant 1 to 13 are to  pay the amount of Rs.7500/-  towards the 1/8th share in the  value of the house bearing  No.25-11 situated at Mancherial  within three months from the date  of compromise to the plaintiffs  (1&2).  In case of failure, the  plaintiffs will have right to recover  the said amount by executing the  decree. 5.      That the parties will bear this own  costs."

       Schedule I properties which fell to the share of  the plaintiffs as per the said decree is as under :

       "               S C H E D U L E â\200\223 I

The properties towards the 1/8th share allotted  to Smt. R. Satya Bai D/o Sri Late S. Ra, Gopal  Rao and Smt. Raj Kumar w/o V. Jagannath  Rao, (Plaintiffs Nos. 1&2). Sl.     Survey  Extent  Nature  Situated        Remarks No.     No.             Ac. Gts. 1.      274             1.21            W.D.C.  Naspur(V)

2.      280             1.34            -do-            -do-

3.      314  Total      12.05           Dry             -do-            To the extent                                                                         of Ac.3.20 Gts.                                                                         toward eastern

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                                                                       side.

4.      75)     Total extent    Dry             -do-     

       77)     Ac. 23.28 Gts.                                  These lands                                                                          are enjoyed         94)     1/4th share                                             jointly.

107)    i.e. 5.37

5.      House No.4-1 situated at Naspur old titled roof house                          (27’ X 15’) Bounded as follows :         South : House of R. Krishan Rao         North  : Open space         East    :  House of R. Krishna Rao         West   :  House of R. Sudhakar Rao 6.      House No.25-11 situated as Mancherial, plaintiffs 1/8th share in  terms of cash i.e. 7500/- recoverable from R. Venkat Rao, R.  Sudhakar Rao. 7.      Plot No.7-49 and 7-50 total 0.28 gts situated at Mancherial to the  extent of 1/8th share.         Sd/-             Defendant No.1    

                               Sd/-                         Advocate for D-2 to 13

               Sd/-                        Advocate for plaintiff       "    

We have carefully considered the compromise  application as well as  the decree passed by the trial court  on the basis thereof on 13th July, 1978.  The tenor of the  entire compromise application in our view clearly indicates  that the parties settled the entire controversy in the suit and  reached a compromise with respect thereto.  They effected  partition of the Schedule immoveable properties and  allotment was made as per Schedules 1 to IV.  Schedule I  which alone is relevant for the present purpose shows that  the properties at Serial Nos. 1 to 3 and 5 were placed in  exclusive possession of the plaintiffs.  So far as property  No.4 is concerned, the same was under acquisition and  therefore only compensation had to be received which could  be shared by the parties as and when it was received.   Regarding Property No.6, the plaintiff’s share had been  converted into an equivalent in cash amounting to Rs.7500/-  recoverable from the other three brothers.  Property at Serial  No. 7 was under litigation as it was occupied by outsiders.   The evidence on record shows that in view of the uncertainty  about the litigation with respect to property at Serial No.7, its  partition was neither practical nor desirable.  Therefore, for  all practical purposes, there was a complete partition of the  suit properties. The compromise further shows that the  partition of suit properties in this manner was acceptable to  the plaintiffs, that is why, they moved the joint compromise  application and prayed for decree in terms thereof.  The  compromise application further records the fact that parties  accepted that they had been put in possession of their  respective share of immoveable properties.  The admission  on the part of the parties including the plaintiffs in our view  leaves no scope for argument that the decree dated 13th  July, 1978 was only a preliminary decree and a final decree  is yet to be passed.  When parties have been put in  possession of their respective shares of immoveable

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properties by way of decree dated 13th July, 1978, nothing  remains for final decree proceedings.  In fact, nothing  remains to be performed further.  If under that partition some  property or properties were kept joint, it was because the  parties agreed to that course of action. Having agreed to  keep the properties joint and having had the suit finally  disposed of as per prayer made to the court, it did not lie in  the mouth of the plaintiffs to ask for final decree proceedings  again and to re-open the partition. The only course open to  the plaintiff in such a case would be to file a fresh suit for  partition with respect to properties  which were kept joint. The fact that the plaintiffs applied for final decree  proceedings after a lapse of more than 13 years further  shows that this was an after thought on the part of the  plaintiffs and we are inclined to believe defendant No.1 when  he says that in view of change in values of the properties  due to passage of time, the plaintiffs were trying to wriggle  out of the partition decree dated 13th July, 1978.         The court while dealing with the compromise  application of the parties containing a prayer for passing a  decree observed that the suit had come before the court for  final disposal on 13th July, 1978.  The court further observed  that parties had agreed to compromise the matter of the suit  and they had put in court a deed of compromise praying that  a decree be passed in accordance with the terms of  compromise.  This shows that the court also proceeded on  the basis that it was finally disposing of the suit be recording  a compromise between the parties with respect to subject  matter of the suit.  The court further observed that the suit of  the plaintiff was decreed in terms of the compromise and the  plaintiffs 1 and 2 "are allotted the properties shown in  Schedule I (in compromise)".  Again it was observed that the  parties are " put in possession of their respective share of  immoveable properties."  The money decree was passed for  Rs.7500/- in favour of plaintiffs and against defendants 1 to 3  regarding property at Serial No.6 in Schedule 1 with the  direction to the defendants to pay the said amount within  three months failing which the plaintiffs were given a right to  execute the decree to recover the said amount.  All this  clearly shows that the suit was finally disposed of.  Parties  were put in possession of respective properties which fell to  their share.  This was as per the agreement reached by the  parties about the partition of the properties.  In the  agreement, the parties had accepted that they had been put  in separate possession of the various immoveable properties  allotted to each group.  These proceedings dated 13th July,  1978 in our view leave no scope for an argument that they  were only by way of a preliminary decree and a final decree  was yet to be passed. In a partition suit, a court is required to  define the shares of the parties, identify the joint properties  which are to be partitioned, allocate properties to parties as  per their respective shares and put the parties in possession  of properties allocated to them.  All this happened with  agreement of parties when the court passed the decree on  13th July, 1978.  No step is missing in those proceedings.   Therefore, nothing remained to be done.

    If at all any party was aggrieved by any provision  contained in the decree dated  13th July, 1978 only course it  was by way of a fresh suit for partition with respect to  immoveable properties which were agreed to remain joint in  the decree dated 13th July, 1978.      

Learned counsel for the respondents (plaintiffs) argued  that the 1978 decree was partly preliminary and partly final.  

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In support of this argument he drew our attention to the  application of the plaintiff under Order XXVI Rules 13 and 14  C.P.C. where it is stated that in the decree dated 30th July,  1978, separate possession of properties at Serial No,1,2,3  and 5 of Schedule-I had been allotted to the plaintiffs while  properties at Serial No.4, 6 and 7 of the said schedule  remained joint.  From this the learned counsel submits that  so far as properties at Sl.Nos.1, 2, 3 and 5 of Schedule I are  concerned, the decree was a final decree while for rest of  the properties it was only a preliminary decree.  It is further  submitted by the learned counsel for plaintiffs that in the  plaint they had asked for separate possession of all the  properties falling to their share.  Accordingly a final decree  with respect to the joint properties remained to be passed.   Referring to sub-section 2 of Section 2 of the Code of Civil  Procedure it was argued that a suit has to be completely  disposed of by a final decree.  In the decree dated 13th July,  1978, properties were allotted to the plaintiffs as per  schedule I.  The said schedule shows that certain properties  were exclusively allotted to the plaintiffs while certain other  properties i.e. properties at Serial Nos.4, 6 and 7 of  schedule-I remained joint.  For purposes of determination  whether the said decree was a preliminary decree or a final  decree or a decree partly preliminary or partly final,  reference has to be made to the decree itself.  It is also  important to gather the intention of the parties from the  compromise application because it was a compromise  decree.  We have already made reference to both these  documents.  In our view, intention of the parties is clear, i.e.  the entire controversy in the suit was sought to be finally  settled.  In a partition it is not necessary that each and every  property must be partitioned and that the parties are put in  separate possession of respective portions of properties  falling to their share.  In the present case, the parties  mutually agreed to keep some of the properties joint.  The  reason for this is also available from the record.  The  properties which were kept joint were in a state that a  partition by metes and bounds was not possible.  Property at  Serial No.4 of the Schedule I was under acquisition and  there was no point in partitioning it by meets and bounds.   Regarding property No.6 the share of the plaintiff had been  quantified in terms of money i.e. Rs.7500/- (Rupees Seven  Thousand Five Hundred only) payable by the defendants  and the plaintiffs were given a right to execute the decree to  that extent.  Property at Serial No.7 was fully occupied by  outsiders with whom litigation was going on.  The fate of the  litigation was unknown.   Therefore, understandably it was  not partitioned.  These facts clearly show that at the time of  compromise itself the parties had taken a final decision with  respect to partition of all the joint family properties and the  same had been given effect to.  The compromise application  does not contain any clause regarding future course of  action which gives a clear indication that nothing was left for  future on the question of partition of the joint family  properties.  The curtain had been finally drawn. The learned counsel for plaintiff also tried to build  argument based on the fact that the 1978 decree has been  referred as a preliminary decree by defendant No.1 in his  reply to the plaintiff’s application under Order XXVI Rules 13  and 14 CPC.  According to him this shows that defendant  himself treated the said decree as a preliminary decree.    This argument has no merit.   We have to see the tenor of  the entire reply and a word here or there cannot be taken out  of context to build an argument.  The reply by defendant 1  seen as a whole makes it abundantly clear that the

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defendant was opposing the prayer in the application  including the prayer for taking proceedings for passing final  decree.

We need not refer to the decisions cited by counsel for  the parties.  The judgments reiterate well settled legal  position regarding which there is no controversy.  As already  observed the case has to be decided on the basis of the  proceedings held on 13th July, 1978 including the  compromise application which is an accepted document.  In  view of our decision that the decree dated 13th July, 1978  was a final decree, the question whether there was an oral  arrangement between the parties in October, 1985 or there  was a fresh family arrangement on 5th  July, 1992 becomes  wholly irrelevant.   In partition matter it is always open to the  parties to enter into fresh arrangement.  They may even  decide to be again joint with respect to the properties which  means that they may throw the properties in the common  pool again.  The parties are free to adopt whatever course of  action they may choose in future by way of mutual  arrangement.

The fact that the compromise in 1978 was a final  partition between the parties finds support from absence of  any averment in the compromise application regarding  reservation of right to the parties to seek partition with  respect to properties kept joint in future.  The decree as a  matter of fact leaves nothing for future. As noticed earlier in  a preliminary decree normally the court declares the shares  of the parties and specifies the properties to be partitioned in  the event of there being a dispute about the properties to be  partitioned.  After declaring the shares of the parties and the  properties to be partitioned, the court appoints a  Commissioner to suggest mode of partition in terms of Order  XXVI Rule 13 CPC.  A perusal of Order XXVI Rule 13 CPC  shows that it comes into operation after a preliminary decree  for partition has been passed.  In the present case, there  was no preliminary decree for partition and, therefore, Rule  13 of Order XXVI does not come into operation.  If the   plaintiffs considered the decree dated 13th July, 1978  as a  preliminary decree, why did they wait to move the application  for final decree proceedings for 13 years? The only answer  is that the plaintiffs knew and they always believed that the  1978 decree was a final decree for partition and it was only    passage of time and change in value of the properties which  was not up to their expectations that drove plaintiffs to move  such an application.

Without adverting to the above facts of the case noticed  by us and on which we have based our decision, the High  Court proceeded on the presumption that the decree dated   13th July, 1978  was only a preliminary decree.  No effort  was made to find out  whether it was a preliminary decree or  a final decree.  No reference was made to the compromise  application or the decree.  The presumption of the High  Court that it was a preliminary decree is the error in the  approach of the High Court in deciding the issue.  For all  these reasons, the impugned judgment of the High Court is  set aside.  The application of the plaintiffs dated 28th  September, 1991 under Order XXVI Rules 13 and 14 read  with Section 151 CPC is dismissed. The appeal is  accordingly allowed leaving the parties to bear their own  costs.

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