* THE HON’BLE SRI JUSTICE V.V.S. RAO + CIVIL REVISION PETITION No.5293 of 2009 % 19.02.2010 # Lakanam Venkata Ramana Rao (died) per L.R. Lakanam Padmavathi … Petitioner AND $ Ponnamanda Alivelamma, W/o.Kanaka Raju …Respondent !Counsel for petitioner: Sri Kuriti Bhaskara Rao, ^Counsel for Respondent: < Gist: > Head Note: ? CITATIONS: 1. 2001(5) ALT 367 (DB) 2. 2006(5) ALT 579 THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.5293 of 2009 19.02.2010 Between: Lakanam Venkata Ramana Rao (died) per L.R. Lakanam Padmavathi …Petitioner and Ponnamanda Alivelamma, W/o.Kanaka Raju …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.5293 of 2009 ORDER: Lakanam Venkata Ramana Rao filed O.S.No.257 of 2006 against Ponnamanda Alivelamma, for partition of vacant site admeasuring 540 Sq.yards in premises bearing No.4-5-22 situated at Ward No.4 of Narsapur Town in West Godavari District. After regular trial, the Court of Senior Civil Judge, Narasapuram, passed preliminary decree on 20.6.2007. The preliminary decree directed partition of plaint schedule property into two equal shares by metes and bounds and defendant was directed to give one such share to plaintiff and deliver separate possession. Thereafter, accepting the report of advocate commissioner, trial Court passed final decree on 31.12.2008, showing plaintiff and defendant as parties. The final decree was engrossed on Non-Judicial (NJ) stamp papers and the same was forwarded to Sub-Registrar, Narasapuram. In the mean while, unfortunately, Venkata Ramana Rao died on 04.2.2009 at Nellore. His wife, Smt.Padmavathi, filed an application being I.A.No.363 of 2009 to recognize her as legal representative of deceased Venkata Ramana Rao and insert her name in the final decree duly erasing the name of her husband in the Court order. The respondent did not oppose the application. But the trial Court dismissed the application on the ground that the Court has become functus officio and cannot recognize any representative to the deceased, who died subsequent to passing of final decree. The said order dated 30.3.2009 is assailed in this revision petition under Article 227 of Constitution of India. This Court heard learned Counsel for petitioner. As the respondent did not raise any objection, it is not necessary to order notice to respondent. Learned Counsel relied on the decisions of this Court in M.Manik Reddy v M.Anasuya Devi[1] and Angara Naga Venkata Vani Srinivasa Rao v Angara Seetha Mahalakshmamma (died) per L.Rs[2]. There is no dispute that final decree engrossed on NJ stamp papers requires registration as per Section 17(1)(e) of the Registration Act, 1908. There is also no dispute that final decree dated 31.12.2008 has been engrossed on NJ stamp papers and sent to Sub-Registrar, Narasapuram, on 17.4.2009. There is a gap of four months between passing final decree and sending engrossed final decree for registration. In the mean while, though original plaintiff submitted NJ stamp papers on 02.1.2009, he died on 04.2.2009. In such a situation, if the name of legal representative is not inserted in the final decree in the place of deceased, original plaintiff, it would result in miscarriage of justice and also render the whole exercise of trial in the suit, preliminary decree and passing of final decree futile. In such circumstances, even though engrossing of final decree is a ministerial act, till proper registration is made giving finality to Court proceedings, the Court cannot be described as functus officio. In this connection, a reference may be made to Ghantesher Ghosh v Madan Mohan Ghosh[3]. In the above mentioned case, a residential house was owned by three brothers. One of them died and his widow inherited 1/3rd share. She filed a suit for partition. A final decree was passed. Thereafter she executed a gift deed in favour of her brother, Ghantesher Ghosh, who was a stranger to joint family. The donee filed an execution petition for execution of final decree. While the same was pending, one of the Judgment Debtors (J.Drs) died and Madan Mohan Ghosh, his legal heir stepped into the shoes of deceased J.Dr. He filed an application under Section 4 of Partition Act, 1893, for enforcing his claim of pre-emption against Ghantesher Ghosh, who got gift from the widow of one of the brothers. The same was dismissed on the ground that such an application after final decree is not maintainable. The High Court held that such an application maintainable till the final decree is fully executed and satisfied by actual division of property by metes and bounds and actual delivery of possession to the stranger transferee. This was subject matter of the appeal before the Supreme Court. Agreeing with the High Court, their Lordships held that the Court passing a final decree in a partition suit does not become functus officio till the final decree is fully executed and satisfied and actual delivery of possession is effected. The relevant observations read as under. It was submitted that if this view regarding applicability of Section 4 is upheld, then it may very well happen that even after the decree for partition is executed by one of the erstwhile co-owners and his transferee and the stranger transferee is actually put in possession of his share by division on spot by metes and bounds, and thereafter if such a transferee transfers his separate share in the dwelling house which has been actually handed over to him, the co-owner may still file an application under Section 4 of the Act. This apprehension is totally misconceived. Section 4 in its applicability, as discussed above, will coyer all stages of litigation in a partition suit from its inception till its termination not only by the final decree for partition but also by its complete satisfaction and discharge through the assistance of the execution Court; once that happens the Court itself becomes functus officio and the litigation will come to an end and the concerned parties thereafter will occupy the respective portions of the erstwhile dwelling house as full owners of their portions. The separated part of the dwelling house in possession of such stranger transferee cannot then be treated as a part and parcel of the dwelling house belonging to an undivided family and at that stage the dwelling house qua such a stranger would cease to belong to any joint family and it would belong to different owners occupying their respective portions in a composite building. Even otherwise, in a situation like this (as it is in this case), the Court must exercise its inherent power under Section 151 of Code of Civil Procedure, 1908, and see that ends of justice are met. If the name of petitioner, who is admittedly wife of deceased, original plaintiff, is not inserted in the final decree, it would result into another proceeding. The entire Court process – very important method of dispensing justice – is to achieve finality of a decision and not trigger multiplicity of proceedings. Therefore, this Court is of considered opinion that the Court below ought to have exercised its inherent power in dealing with the application. Not doing the same amounts to grave error. Accordingly the impugned order dated 30.3.2009 in I.A.No.363 of 2009 in FDIA No.894 of 2007 in O.S.No.257 of 2006 is set aside. The said application is allowed and the Court below is requested to insert the name of petitioner, Lakanam Padmavathi, in the place of deceased original plaintiff, Lakanam Venkata Ramana Rao. In the result, the civil revision petition is allowed. There shall be no order as to costs. ________________ (V.V.S.RAO, J) February 19, 2010. NOTE: L.R. Copy be marked. (By order) YS [1] 2001(5) ALT 367 (DB) [2] 2006(5) ALT 579 [3] (1996) 11 SCC 446 : AIR 1997 SC 471