REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  7008    OF 2008 (Arising out of SLP (C) No.959 of 2008)

S. Satnam Singh & Ors. … Appellants

Versus

Surender Kaur & Anr. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Whether  a  property  can  be  added  in  the  list  of  properties  after  a

preliminary  decree  is  passed  in  a  partition  suit  is  the  question  involved

herein.

3. The parties hereto are successors of one late Surender Singh and one

late Harikishan Singh.  They were brothers.  First respondent is the widow

of late Harikishan Singh and the second respondent is his son.  The property

which  was  the  subject  matter  of  the  partition  suit  was  a house  premises

bearing  Municipal  No.2-4-1099  situated  at  Nimbali  Adds,  Hyderabad

admeasuring 671 sq. yards.

4. The suit was filed by late Harikhsian Singh against the first petitioner

and his  son Rajinder  Singh.   In  the  written  statement,  the  said  fact  was

admitted.  The question which arose for consideration of the court, however,

was as regards the share of the parties therein.  Whereas according to the

petitioner, the plaintiff had only 1/3rd share in the suit property, according to

the plaintiff he had 1/2nd share therein.  

5. In the written statement, it was, inter alia, contended :

“There  has  never  been  any  such  attempt  by  the plaintiff for partition of the property as alleged in the plaint.  In fact, the plaintiff has failed to render true  and  proper  account  of  the  business  of  M/s. Bombay  Cycle  Company  though  he  was specifically called upon to do so by the defendant – 2, individually as well through his counsel.  The plaintiff  has  also  never co-operated in  managing the  matters  immediately  after  the  death  of  Late Sunder  Singh,  the  father  of  the  plaintiff  and defendant – 1.  Having knocked away some of the securities  and  other  amounts  which  were  in  the hands  of  the  plaintiff  after  death  of  late  Sunder Singh singularly the plaintiff has chosen to file the present suit for partition claiming 50% share in the

2

residential  house,  which  is  mentioned  as  suit schedule property.”

6. An application for amendment of the said written statement was filed,

inter alia, stating :

“It is true that Sri Sunder Singh died on 26.4.1980 intestate  leaving  behind  his  widow,  the  plaintiff and the defendant – 1 herein.  It is also true that widow of late Sri Sunder Singh, i.e., Smt. Karam Kaur  also  died  on  14.9.1992.   However,  the allegation that she died intestate is  incorrect  and false.  The plaintiff  is very well  aware that  Smt. Karam  Kaur  executed  a  registered  will  on 1.9.1981  before  the  Sub-registrar,  Chikkadpally bequeathing  her  1/3rd share  in  the  suit  schedule property as well as her 50% rights as a partner in the business of M/s.  Bombay Cycle Company to the defendant No.2, herein.  In the circumstances the contrary allegations made in the plaint in this respect  are  denied  as  false  and  fabricated.   It would,  thus,  be  apparent  that  by  any  stretch  of imagination the plaintiff  cannot deny 50% rights in respect of the suit schedule property as after the death  of  Sunder  Singh,  widow  of  Sri  Sunder Singh, Karam Kaur, plaintiff / and the defendant 1 herein  had  become  entitled  to  1/3rd share  each. Smt.  Karam  Kaur  having  executed  a  registered will on 1.9.81, her 1/3rd share naturally goes to the defendant  2,  herein.   In  the  circumstances  the plaintiff  would  not  be  entitled  to  anything  more than  33.33% of  the  suit  Schedule  property  if  at all.”

It was furthermore alleged :

3

“There  has  never  been  any  such  attempt  by  the plaintiff for partition of the property as alleged in the plaint.  In fact, the plaintiff has failed to render true  and  proper  account  of  the  business  of  M/s. Bombay  Cycle  Company  though  he  was specifically called upon to do so by the defendant – 2,  individually as  well  as  through his  counsel. The  plaintiff  has  also  never  co-operated  in managing the matters immediately after the death of  Late  Sunder  Singh,  the  father  of  the  plaintiff and defendant – 1.  Having knocked away some of the securities and other amounts which were in the hands  of  the  plaintiff  after  death  of  late  Sunder Singh singularly the plaintiff has chosen to file the present suit for partition claiming 50% share in the residential  house,  which  is  mentioned  as  suit schedule property.  It would thus be apparent that there  is  absolutely  no  merits  in  the  suit  and  the plaintiff  would  not  be  entitled  for  the  share  as claimed.   The  suit,  therefore  being  absolutely devoid  of  merits  deserves  to  be  dismissed  with costs.”

A replication to the said written statement was also filed.   

7. The learned Trial Judge framed issues which read as under :

“i. Whether plaintiff is entitled for partition? If so, to what share?

ii. To what relief?

On  21.1.02,  basing  on  the  pleadings  of defendant  No.3,  the  following  additional issues were settled :-

4

iii. Whether  defendant  No.3  is  the legal  heir  of  defendant No.2?

iv. Whether  the  Will  deed  claimed  by defendant No.3 is true, valid and binding on the plaintiff?”

8. The suit was decreed declaring 1/3rd share in favour of the plaintiff as

also the first defendant, stating :

“i. The  plaintiff  is  entitled  to  partition  and separate possession of 1/3rd share only in the suit schedule property.

ii. The first  defendant  is  entitled to 1/3rd share in the suit schedule property.

iii. Defendant No.3 being the legal heir of defendant No.2, who is not heard of since more than 7 years and thereby presumed to be dead in the eye of law.  Defendant No.3 is  entitled  to  his  (D2)  1/3rd share  in  the  suit  schedule property.”

9. An  interlocutory  application  was  filed  by  the  appellant  thereafter

purported  to  be  in  terms  of  Order  XX  Rule  18  of  the  Code  of  Civil

Procedure read with Section 152 of the Code of Civil Procedure with regard

to  the  share  of  the  parties  in  the  said  Bombay  Cycle  Company.   The

respondents objected thereto.  By reason of an order dated 14th March, 2006,

the said application was allowed, directing :

5

“Admittedly the petitioners have raised a plea in respect of Bombay Cycle Company in their written statement but there was no specific issue framed in the regard.  The learned counsel appearing for the petitioners  submit  that  in  order  to  shorten  the litigation  instead  of  driving  the  parties  to  a separate action, the present dispute can be decided in  the  present  dispute  itself.   The  petitioners  in support of their contention relied on the decision of our Hon’ble High Court in Syed Ikramuddin v. Syed Mahamed Ali reported in AIR 1986 AP 267. Further  there  is  a  dispute  with  regard  to  the Bombay Cycle Co. business.  Whether it is a joint family  business  and  whether  the  petitioners  are having any share in the property cannot be decided without making any enquiry in that direction.

Therefore, I feel  that the parties should be directed to adduce oral or documentary evidence in respect of their respective contentions so as to enable  this  Court  to  decide  the  point  of controversy.  It is also not out of place of mention here that the Hon’ble High Court also directed to dispose of the matter at the earliest possible time.  

Accordingly the parties are directed to lead oral and documentary evidence in support of their contentions.  The respondent No.4 herein is not a party to the suit.  No relief is passed against the respondent No.4 herein is not a party to the suit. No relief is passed against the respondent No.4 in this petition.  Call on 16.3.2006.”

10. A civil revision application filed thereagainst by the respondents has

been  allowed  by  reason  of  the  impugned  judgment.   The  High  Court

6

referred to the decision of this Court in Phoolchand v. Gopal Lal [AIR 1967

SC 1470] to conclude :

“The  Supreme  Court  was  dealing  with  a  case where the shares had to be reallocated on account of death of party and therefore the Court said such facts  can  be  taken  into  consideration  and appropriate orders could be passed which could be a fresh preliminary decree.   But  here  we have  a case where it is contended by the defendants that they had mentioned in their written statement the property which they now sought to include in the preliminary decree.   Whole  trial  went  on  decree was passed  in  2003, and this  particular  property was  not  mentioned in  the  decree  as  joint  family property and after three years an application came to be filed that  it  should be added in the decree which, in our view, is not permissible.  Therefore, we hold that the judgment of this  Court in  Syed Ikramuddin v.  Syed  Mahamed  Ali does  not  lay down a good law and the question is answered that additional properties cannot be added for partition in  the  preliminary  decree  after  the  preliminary decree attained finality in terms of Section 97 of the Code.”

11. Mr.  P.S.  Narasimha,  learned  counsel  appearing  on  behalf  of  the

appellant,  would submit that as in this case the only dispute between the

parties was with regard to the share in the suit  property and, thus, it was

obligatory  on  the  part  of  the  court  to  pronounce  its  decision  on  all  the

issues.   

7

12. It  was  urged  that  a  very  well  considered  decision  of  the  Andhra

Pradesh High Court in  Syed Ikramuddin v.  Syed Mahamed Ali [AIR 1986

AP 267] has wrongly been overruled by reason of the impugned judgment.

13. Mr. G.V.R. Choudhary, learned counsel  appearing on behalf of the

respondent, on the other hand, would support the judgment contending that

the courts even do not have any suo motu power to amend the decree as a

preliminary decree once passed is final.   

14. A ‘decree’ is defined in Section 2(2) of the Code of Civil Procedure

to mean 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.  It may

either be preliminary or final.  It may partly be preliminary and partly be

final.  The court with a view to determine whether an order passed by it is a

decree or not must take into consideration the pleadings of the parties and

the proceedings leading upto the passing of an order.  The circumstances

under which an order had been made would also be relevant.  

15. For determining the question as to whether an order passed by a court

is a decree or not, it must satisfy the following tests :

“(i) There must be an adjudication;

8

(ii) Such adjudication must have been given in a suit;

(iii) It  must  have  determined  the rights  of  the  parties  with regard to all or any of the matters in controversy in the suit;

(iv) Such determination must be of a conclusive nature; and

(v) There must be a formal expression of such adjudication.”

16. Before adverting to  the rival  contentions  of  the  parties,  it  must  be

kept in mind the principle that ordinarily a party should not be prejudiced by

an act of court.  It must also furthermore be borne in mind that in a partition

suit where both the parties want partition, a defendant may also be held to

be a plaintiff.  Ordinarily, a suit for partial partition may not be entertained.

When the parties have brought on records by way of pleadings and/or other

material that apart from the property mentioned by the plaintiff in his plaint,

there are other properties which could be a subject matter of a partition, the

court would be entitled to pass a decree even in relation thereto.

17. In certain situations, for the purpose of complete adjudication of the

disputes  between  the  parties  an  appellate  Court  may  also  take  into

consideration subsequent events after passing of the preliminary decree.   

In Ct. A. Ct. Nachiappa Chettiar & Ors. V.  Ct. A. Ct. Subramaniam

Chettiar [(1960) 2 SCR 209], it was held :

9

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

18. While  dealing  with  the  application  under  Section  21  of  the

Arbitration  Act,  1940  where  one  of  the  questions  was  as  to  whether  an

immoveable  property  situated  in  Burma  could  be  a  subject  matter  of

reference, in  Phoolchand & Anr. v.  Gopal Lal [(1967) 3 SCR 153], it was

held :

“7. We are of opinion that there is nothing in the Code  of  Civil  Procedure  which  prohibits  the passing  of  more  than  one  preliminary  decree  if circumstances justify the same and that it may be necessary  to  do  so  particularly  in  partition  suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits  the court can do so even after the preliminary  decree  is  passed.  It  would  in  our opinion  be  convenient  to  the  court  and advantageous to the parties, specially in partition suits,  to  have  disputed  rights  finally  settled  and specification  of  shares  in  the  preliminary decree

10

varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit  on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is  no reason why a second preliminary decree  correcting  the  shares  in  a  partition  suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which  necessitates  a  change in  shares,  the  court can and should do so; and if there is a dispute in that  behalf,  the  order  of  the  court  deciding  that dispute and making variation in shares specified in the preliminary decree already passed is a decree in  itself  which  would  be  liable  to  appeal.  We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do  not  see  why  we  should  rule  out  a  second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility.”

The  said  principle  was  reiterated  in  Mool  Chand  &  Ors. v.  Dy.

Director, Consolidation & Ors. [AIR 1995 SC 2493], stating :

“The definition of ‘decree’ contained in Section 2 (2) read with the provisions contained in Order 20, Rule 18(2) as also Order 26, Rule 14 of the Code indicate  that  a preliminary decree has first  to be passed  in  a  partition  suit  and  thereafter  a  final decree is passed for actual separation of shares in

11

accordance with the proceedings held under Order 26.   There  are,  thus,  two  stages  in  a  suit  for partition.   The  first  stage  is  reached  when  the preliminary  decree  is  passed  under  which  the rights of the parties in the property in question are determined and declared.  The second stage is the stage  when  a  final  decree  is  passed  which concludes  the  proceedings  before  the  Court  and the suit is treated to have come to an end for all practical purposes.”

19. Mr.  Chaudhary,  however,  has  placed  strong  reliance  in  Venkata

Reddy & Ors. v. Pethi Reddy [AIR 1963 SC 992], wherein it was held :

“A preliminary decree passed,  whether  it  is  in  a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive.  No doubt,  in suits  which contemplate the making of two  decrees  a  preliminary  decree  and  a  final decree  –  the  decree  which  would  be  executable would be the final  decree.   But  the  finality of a decree or a decision does not necessarily depend upon its being executable.  The legislature in its wisdom  has  thought  that  suits  of  certain  types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided  only  after  a  final  decree  is  made  the decision  of  the  court  arrived  at  the  earlier  stage also  has  a  finality  attached  to  it.   It  would  be relevant to refer to Section 97 of the Code of Civil Procedure  which  provides  that  where  a  party aggrieved by a preliminary decree does not appeal from  it,  he  is  precluded  from  disputing  its correctness in any appeal which may be preferred from the final decree.  This provision thus clearly indicates  that  as  to  the  matters  thus  clearly

12

indicates  that  as  to  the  matters  covered  by it,  a preliminary decree is  regarded as embodying the final decision of the court passing that decree.”

20. Indisputably, Section 97 of the Code of Civil Procedure provides for

an appeal against preliminary decree but the said provision, in our opinion,

would not be a bar to file an application for amendment of a decree.   

21. The court may not have a suo motu power to amend a decree but the

same would not mean that the court cannot rectify a mistake.  If a property

was subject matter of pleadings and the court did not frame an issue which it

ought to have done, it can, at a later stage, when pointed out, may amend the

decree.

22. The  power  of  amendment,  in  a  case  of  this  nature,  as  noticed

hereinbefore, would not only be dependent upon the power of the court but

also the principle that a court shall always be ready and willing to rectify the

mistake it has committed.

23. The  issues  were  not  correctly  framed.   An  additional  written

statement was permitted to be filed.  A replication thereto also was allowed.

It was in that situation, the question as to whether the business transaction

13

of  Bombay  Cycle  Company  could  be  a  subject  matter  of  the  suit  for

partition or not was required to be determined on its own merits.  

24. The  Trial  Court  felt  that  it  had  committed  a  mistake.   In  such  a

situation,  the  court,  in  our  opinion,  committed  no  infirmity  in  directing

rectification of its mistake.   

25. For the  reasons  aforementioned,  the impugned judgment  cannot  be

sustained.  It is set aside accordingly.  The appeal is allowed.  No costs.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Cyriac Joseph]

New Delhi; December 02, 2008

14