RSA No.3347 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3347 of 1986 Date of Decision: 9.03.2010 Kaushalya Devi (Dead) through LRs. ..Appellant Vs. Hari Singh & Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.P.S.Dhaliwal, Advocate, for the appellant. Mr.P.N.Aggarwal, Advocate, for respondent No.1. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. The defendant/appellant has challenged the judgment and decree dated 29.4.1986, passed by the learned courts below vide which the suit filed by the plaintiff/respondent for partition was ordered to be decreed. RSA No.3347 of 1986 2 The plaintiff/respondent brought a suit for partition for separating his 5/6th share from the properties situated within the revenue limits of Sangrur as detailed in the head-note of the plaint on the pleadings that Labh Singh and Hari Singh constituted a joint Hindu family with Bishan Singh. Bishan Singh was the Karta of said family. After his death, Labh Singh became Karta of joint Hindu family. Two shops and two houses were joint Hindu family and coparcenary property of Bishan Singh and his sons and after his death it continued to be joint Hindu family and coparcenary property of the plaintiff and Labh Singh. Labh Singh deceased leased out Shop No.1 to Prit Pal Singh, whereas second shop mentioned in the head-note of the plaint was leased out to Narinder Kumar, defendant No.3. Ground floor of the house mentioned at Sr. No.3 was leased out to Gurmail Singh, whereas in the upper story Kaushalya, defendant No.1 used to reside. Smt. Harnam Kaur widow of Bishan Singh died on 11.2.1981. On the death of Labh Singh Smt.Harnam Kaur and Smt.Kaushalya Devi succeeded to his share according to Hindu Succession Act. It was pleaded that Smt.Harnam Kaur got half share in the joint Hindu family coparcenary property. Smt.Harnam Kaur in sound and disposing state of mind executed a registered Will on 29.9.1978 and bequeathed all her properties to the plaintiff/respondent. Another Will was executed by Mohan Singh. He was also handed over another reregistered Will of Smt.Harnam Kaur dated 17.11.1980. The plaintiff, therefore, succeeded to the share of Smt.Harnam Kaur in the property mentioned in the plaint and he had 1/3rd share in the property mentioned in the head-note of the plaint, excluding the share of RSA No.3347 of 1986 3 Smt.Harnam Kaur. So in all he had 5/6th share in the property. The plaintiff was residing with his family in a house mentioned at Sr.No.4 in the plaint. The case of the plaintiff was that defendant No.1 was requested that his share be separated but on refusal suit for partition was filed. Defendant No.2 did not contest the suit. Defendant No.4 Gurmail Singh though participated in the proceedings but failed to file any written statement. Defendant No.1, in her written statement took number of preliminary objections and pleaded that the plaintiff had no cause of action to file the suit; that the plaintiff did not include the entire joint property of the parties. A plea of estoppel was also raised. On merit, it was admitted, that Bishan Singh had two sons Labh Singh and Hari Singh plaintiff. Defendant No.1 was the widow of Labh Singh, whereas Smt.Harnam Kaur was mother of the plaintiff and Labh Singh deceased and Sheela Devi was their sister. It was admitted that Labh Singh died in the year 1978 but it was denied that the leased property was joint Hindu family and coparcenary property of the plaintiff and Bishan Singh and Labh Singh deceased. It was pleaded that only two shops and one house were the properties of the plaintiff and Labh Singh at Sangrur and one house at Bhadaur was also owned by them. Two shops were old and kacha ones and after demolishing the same two new shops and residential house were constructed by Labh Singh, after family settlement had been arrived. It was denied that Gurmail Singh defendant No.4 was tenant. It was pleaded that he being close relative of defendant No.1 was residing in part of the house without payment of any rent. Execution of Will by Smt.Harnam RSA No.3347 of 1986 4 Kaur was denied. It was pleaded that after family settlement property ceased to be joint. Smt.Harnam Kaur was given a house situated in village Bhadaur and plaintiff was given a pucca well built house mentioned at Sr.No.4 in the head-note of the plaint, whereas Labh Singh was given two old shops where he constructed two shops and a residential portion. It was denied that Smt.Harnam Kaur had become owner of half share in the property. It was claimed that Smt.Harnam Kaur was not in sound and disposing state of mind and therefore,was not in a position to execute the Will in view of her sickness. It was also pleaded that after family settlement Labh Singh obtained permission from the Municipal Committee for construction of property mentioned at Item Nos.1, 2 and 3 on which a sum of Rs.50,000/- (Rupees fifty thousand only) was spent. It was claimed that in the event the properties are found to be joint the defendants were entitled to a sum of Rs.2 lacs (Rupees two lacs only) as costs of construction. Defendant No.3 Narinder Singh, who was tenant in the property also contested the suit by taking number of preliminary objections. He asserted that Labh Singh was owner of 2nd shop which was leased out to him and he was paying rent to him. Defendant No.5, in his written statement admitted the relationship of parties but he denied that the property was joint Hindu family property. He claimed that Smt. Harnam Kaur had executed a genuine Will dated 3.10.1979 in her favour and in favour of the plaintiff in equal shares and by virtue of that she also succeeded equally to the share left by her mother. In the replication, averments made in the written statement RSA No.3347 of 1986 5 were denied and those made in the plaint were reiterated. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether Mst.Harnam Kaur executed a valid will in favour of plaintiff on 17.11.1980, if so, its effect? OPP 2. Whether the property in dispute is a coparcenary property? OPP 3. Whether the plaintiff is owner of 5/6 share in the suit property? OPP 4. Whether the suit is bad for partial partition? OPD 5. Whether the plaintiff is estopped from filing the suit by his act and conduct? OPD 6. Whether there has been a family settlement between the parties regarding their joint property about seven years back as pleaded in the written statement of defendant No.1, if so, its effect? OPD 7. Whether Harnam Kaur executed a valid will of her property in favour of defendant No.5 on 3.10.1979? OPD 8. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD 9. Whether the civil court has no jurisdiction to try the suit? OPD 10. Whether the suit is not maintainable in the present form? OPD RSA No.3347 of 1986 6 11. Whether Narinder Kumar, defendant No.2 is a tenant under the widow of Labh Singh, if so, its effect? OPD 12. Relief. Learned trial court took up issues No.1 and 7 together. On appreciation of evidence on issue No.1, learned trial court held that due execution of Will dated 17.11.1980 in favour of the plaintiff was not proved whereas Will dated 3.10.1979 stood proved. On issue No.7, learned trial court held that the plaintiff had failed to prove that the property in dispute was coparcenary property. In view of the findings on issue No.7, learned trial court on issue No.3 held that by virtue of Will dated 3.10.1979 share of Smt.Harnam Kaur was to be equally divided between the plaintiff and defendant No.1. The plaintiff, therefore, was held entitled to 7/12 share in the property and not 5/6 as claimed. Issue No.4 was not pressed. Issues No.5 and 6 were decided against the defendants, whereas issues No.8, 9 and 10 were not pressed. On issue No.11, it was held that the property under the tenancy of defendant No.3 would continue to be under his tenancy as he would become tenant of the property under the party who would would get it in partition. In view of the findings recorded above, suit for partition was decreed and direction was issued to prepare the preliminary decree. Two appeals were filed against the judgment and decree – one by the plaintiff/respondent and another by the defendant appellant. RSA No.3347 of 1986 7 Learned lower appellate court affirmed the findings of the learned trial court by dismissing the appeal filed by defendant No.1 and defendant No.5, whereas appeal filed by the plaintiff/respondent was accepted. As the will dated 17.11.1980 was upheld, the plaintiff was, therefore, held entitled to 5/6 share in the property. The matter regarding the Will is not being discussed in detail here as though attempt was made to challenge the Will, however, it was to have no bearing on the decision of this appeal as the appeal was not preferred by defendant No.5, but only by defendant-appellant. It was not open to defendant No.1 to challenge the finding on the question of Will as it was dispute between the plaintiff and defendant No.5. Mr.P.S.Dhaliwal, learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial question of law for consideration of this court: 1. Whether the learned trial court and lower appellate court while passing preliminary decree of partition were required to decide all questions or some of the questions could be left out to be decided by the learned trial court while passing the final decree? In support of the substantial question of law, learned counsel for the appellant referred to the judgment and decree passed by the learned lower appellate court , wherein it was observed that the learned trial court under issue No.5 had observed that apparently Rs.40-50000/- (Rupees forty RSA No.3347 of 1986 8 to fifty thousand only) were spent by Labh Singh, alone as new construction over the old properties was raised. However, this could not stop Hari Singh plaintiff from filing suit for partition. The learned lower appellate court, however, held that this could not be a ground to interfere with the findings of the learned trial court on issue No.5. However, learned court framed an additional issue which reads as under:- “ Whether Labh Singh deceased had made construction over the properties Nos. 1 to 3 as mentioned in the head note of the plaint, at his own expenses, as alleged? If so, at what expenses and to what effect? Instead of deciding additional issue or seeking report on the said issue, learned lower appellate court while dismissing the appeal ordered that the learned trial court should decide additional issue framed above at the time of passing of final decree and before appointing a local commissioner. The contention of the learned counsel for the appellant, therefore, was that the judgment and decree passed by the learned lower appellate court cannot be sustained as it has failed to decide the matter completely. The contention of the learned counsel for the appellant, was that the final decree cannot amend or go behind the preliminary decree on the matter decided in the preliminary decree, therefore, it was not open to the learned lower appellate court to have left this issue to be decided by the learned trial court. In support of this contention, learned counsel for the appellant RSA No.3347 of 1986 9 placed reliance on the judgment of Hon'ble Supreme Court in the case of Muthangi Ayyana Vs. Muthangi Jaggarao and others AIR 1977 SC 292, wherein Hon'ble Supreme court was pleased to lay down as under:- “5. This appeal, coming up before us from the final decree, raises the question whether the preliminary decree, confines, as the learned Counsel for the appellant-defendant No.4 submits, accounting to the claims made by and against individual parties mentioned in the preliminary decree. He urges that it cannot be extended to all parties, including the defendantNo.4, if the terms of the preliminary decree are binding. The contention is based on the well recognized proposition that a final decree cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree.” The contention of the learned counsel for the appellant further was, that once the lower appellate court framed an additional issue, then it can either take evidence itself, or can call for the report from the learned trial court on the additional issue, before finally deciding the appeal. In rarest cases judgment and decree of the learned trial court can be set aside and case remanded back to decide it afresh after deciding additional issue. However,while dismissing the appeal learned lower appellate court cannot be permitted to let the learned trial court, decide that issue while passing the final decree, as all questions are required to be determined while passing the preliminary decree. Mr.P.N.Aggarwal, learned counsel appearing on behalf of the RSA No.3347 of 1986 10 plaintiff/respondent, on the other hand, by referring to Order 22 Rule 16 of the Code of Civil Procedure contended, that in a suit for possession by partition, a preliminary decree is required to be passed. Thereafter, a final decree, is to be passed carrying out the directions given in the preliminary decree or even thereafter by the court. Passing of final decree is, therefore, continuation of the proceedings of the suit for partition, till the final decree is passed. In support of this contention, learned counsel for the respondent, placed reliance on the judgment of Full Bench of Hon'ble Madras High Court in the case of Babburu Basavayya & Ors. Babburu Guravayya & Anr., AIR (38) 1951 Madras 938. Reliance was also placed on the judgment of Hon'ble Supreme court in the case of Renu Devi Vs. Mahendra Singh & Ors. 2003 (1) Apex Court Judgments 626, wherein Hon'ble Supreme Court was pleased to lay down, that preliminary decree merely declares the rights and shares of the parties, and leaves room for some further inquiry to be held and conducted pursuant to the directions made in the preliminary decree, and after inquiry is conducted, the rights of the parties are finally determined and a decree incorporating such determination needs to be drawn up which is the final decree. In para No.8 of this judgment, Hon'ble Supreme Court laid down as under:- “8. A preliminary decree declares the rights or shares of parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate RSA No.3347 of 1986 11 possession of divided property then such inquiry shall be held and pursuant to the result of further inquiry a final decree shall be passed. A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings;. Then, as a result of the further proceedings conducted pursuant to the preliminary decree the rights of the parties are formally determined and a decree is passed in accordance with such determination, which is, the final decree. (See: CPC by Mulla Vol., 1995 Edn. 21). The distinction between preliminary and final decree is this: a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry, to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree incorporating such determination needs to be drawn up which is the final decree.” Learned counsel for the respondent/plaintiff had also relied upon number of decisions in support of the Will. However, as this matter is not disputed, or raised in this regular second appeal, no notice thereof is being taken. There is force in the contention raised by the learned counsel for the appellant, that it was not open to the learned lower appellate court to have left the additional issue to be decided by learned trial court, without recording a finding on additional issue while dismissing the appeal, against RSA No.3347 of 1986 12 the preliminary decree. The learned court while passing preliminary decree was to determine all the rights of the parties, as the final decree is to be passed in consonance with preliminary decree. The substantial question of law framed deserves to be answered in favour of the appellant. However, in spite of finding on substantial question of law, there is no scope for interference in this appeal, for the reason that Mr.P.N.Aggarwal, learned counsel appearing on behalf of the respondent, on instruction from his client, conceded that additional issue be answered in favour of the defendant/appellant, by holding that the amount, as was claimed spent on construction, by Labh Singh exclusively, and the appellant can claim benefit, of the construction at the time of passing of final decree. In view of the concession given by the learned counsel for respondent, there is no merit in this appeal. The appeal is ordered to be dismissed, but with no order as to costs. (Vinod K.Sharma) 9.03.2010 Judge rp