KATTUKANDI EDATHIL KRISHNAN & ANR. versus KATTUKANDI EDATHIL VALSAN & ORS.
[2022] 7 S.C.R. 1120, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Arguments
A
B
C
D
E
F
G
H
1120
SUPREME COURT REPORTS
[2022] 7 S.C.R.
   [2022] 7 S.C.R. 1120
1120
KATTUKANDI EDATHIL KRISHNAN & ANR.
v.
KATTUKANDI EDATHIL VALSAN & ORS.
(Civil Appeal No(s). 6406-6407 of 2010)
JUNE 13, 2022
[S. ABDUL NAZEER AND VIKRAM NATH JJ.]
Evidence Act, 1872 – s.114 – Share in coparcenary property
– Partition suit filed by appellants-plaintiffs claiming half share in
the coparcenary property – Respondents-defendents challenged the
marriage of the first plaintiff’s parents i.e. ‘D’ and ‘C’ and also
contended that plaintiff no.1 is not the son born out of the said
wedlock – Trial Court upheld the validity of marriage of first
plaintiff’s parents and held that plaintiff no.1 is son born out of
said wedlock and passed preliminary decree for partition of the
suit property – Appeal filed by respondent before High Court –
High Court held that plaintiff no.1 is son of ‘D’ but not a legitimate
one and thereby denied partition of the property – Before the
Supreme Court, appellants contended that as per s. 114 IEA, long
course of living together between a male and female will raise a
rebuttable presumption of marriage between them and the children
born in such relationship are considered to be legitimate children –
Held: From the documents on record coupled with the evidence of
PW-2, would show that there was long duration of cohabitation
between parents of plaintiff no. 1 – Though the presumption of s.114
IEA is rebuttable, heavy burden lies on him who seeks to rebut the
presumption – The respondents have failed to rebut the presumption
of marriage raised as per s. 114 IEA – Therefore the judgment of
the trial Court is upheld – As far as issue of delay in initiating final
decree proceedings u/Or. XX, r.18 of the CPC is concerned, the
trial Courts directed to list the matter for taking steps u/Or. XX Rule
18 of the CPC soon after passing of the preliminary decree for
partition and separate possession of the property, suo motu and
without requiring initiation of any separate proceedings – Code of
Civil Procedure,1908 – Or. XX, r. 18.
Allowing the appeals, the Court
HELD: 1. It is well settled that if a man and a woman live
together for long years as husband and wife, there would be a
presumption in favour of wedlock. Such a presumption could be
A
B
C
D
E
F
G
H
1121
drawn under Section 114 of the Evidence Act. Although, the
presumption is rebuttable, a heavy burden lies on him who seek
to deprive the relationship of legal origin to prove that no
marriage took place. [Para 15][1126-E]
2. The plaintiffs have produced the birth certificate of the
first plaintiff as Ex.A-9. As per this document, the date of birth of
the first plaintiff is shown as 12.05.1942. K.E. ‘D’ and ‘C’ are
described as father and mother. [Para 23][1128-C]
3. There are also enough materials on record to show that
‘C’ was getting some money from the family of ‘D’, including in
particular the letters at Exs.A22 and A23, which were addressed
to the first plaintiff by his mother ‘C’ long back in the year 1976.
[Para 25][1129-C-D]
4. The first plaintiff was born on 12.05.1942 as is evident
from Ext.A9. The documents produced by the plaintiffs were in
existence long before the controversy arose between the parties.
These documents, coupled with the evidence of PW-2, would
show the long duration of cohabitation between ‘D’ and ‘C’ as
husband and wife. The first plaintiff joined military service in the
year 1963 and retired in the year 1979. Thereafter he has taken
the steps to file a suit for partition of the suit schedule property.
[Para 26][1130-B-D]
5. This Court also perused the evidence of the defendants.
This Court is of the view that the defendants have failed to rebut
the presumption in favour of a marriage between ‘D’ and ‘C’ on
account of their
long co-habitation. [Para 27][1130-D-E]
6. Once a preliminary decree is passed by the Trial Court,
the court should proceed with the case for drawing up the final
decree suo motu. After passing of the preliminary decree, the
Trial Court has to list the matter for taking steps under Order
XX Rule 18 of the CPC. The courts should not adjourn the matter
sine die, as has been done in the instant case. There is also no
need to file a separate final decree proceedings. In the same
suit, the court should allow the concerned party to file an
appropriate application for drawing up the final decree. Needless
to state that the suit comes to an end only when a final decree is
drawn. [Para 33][1135-A-C]
KATTUKANDI EDATHIL KRISHNAN & ANR.v. KATTUKANDI
EDATHIL VALSAN & ORS.
A
B
C
D
E
F
G
H
1122
SUPREME COURT REPORTS
[2022] 7 S.C.R.
Badri Prasad v. Dy. Director of Consolidation and
Others (1978) 3 SCC 527: [1979] 1 SCR 1; S.P.S.
Balasubramanyam v. Suruttayan alias Andali Padayachi
and Others (1994) 1 SCC 460; Tulsa and Others v.
Durghatiya and Others (2008) 4 SCC 520 : [2008] 1
SCR 709; Challamma v. Tilaga and Others (2009) 9 SCC
299 : [2009] 11 SCR 831; Madan Mohan Singh and
Others v. Rajni Kant and Another (2010) 9 SCC 209 :
[2010] 10 SCR 30; Indra Sarma v. V.K.V. Sarma (2013)
15 SCC 755 : [2013] 14 SCR 101920 – relied on.
Shub Karan Bubna v. Sita Saran Bubna (2009) 9 SCC
689 : [2009] 14 SCR 40; Bimal Kumar and Another v.
Shakuntala Debi and Others (2012) 3 SCC 548 : [2012]
2 SCR 195 – referred to.
Andrahennedige Dinohamy and Anr. v. Wijetunge
Liyanapatabendige Balahamy and Ors. AIR 1927 PC
185; Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR
1929 PC 135 – referred to.
Case Law Reference
[1979] 1 SCR  1
relied on
Para 18
(1994) 1 SCC 460
relied on
Para 19
[2008] 1 SCR 709
relied on
Para 20
[2009] 11 SCR 831
relied on
Para 20
[2010] 10 SCR 30
relied on
Para 20
[2013] 14 SCR 1019
relied on
Para 20
[2009] 14 SCR 40
referred to
Para 31
[2012] 2 SCR 195
referred to
Para 31
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.6406-
6407 of 2010.
From the Judgment and Order dated 05.02.2009 of the High Court
of Kerala at Ernakulam in A.S. Nos.102 and 107 of 1996.
V. Chitambaresh, K. Rajeev, Advs. for the Appellants.
R. Basant, V. Giri, Sr. Advs., Raghenth
Basant, K. B. Shivarama
Krishnan, Ms. Liz Mathew, Amith Krishnan, Akshay Sahay, Ms. Roopali
Lakhotia, Advs. for the Respondents.
A
B
C
D
E
F
G
H
1123
The Judgment of the Court was delivered by:
S. ABDUL NAZEER, J.
1. The instant appeals arise out of the judgment and decree dated
05.02.2009 passed by the High Court of Kerala at Ernakulam in A.S.
No.102 of 1996(A) and A.S. No.107 of 1996 whereby the High Court
has allowed the appeals and set aside the decree for partition passed by
the Trial Court.
2. The appellants were the plaintiffs and Kattukandi Idathil
Karunakaran was the defendant who died during the pendency of the
suit. Therefore, his legal representatives were brought on record as
defendants no.2 to 5. For the sake of convenience, the parties are referred
by their respective ranking before the Trial Court.
3. In the suit, the plaintiffs contended that the suit property belonged
to one Kattukandi Edathil Kanaran Vaidyar who had four sons viz.
Damodaran, Achuthan, Sekharan and Narayanan. The first plaintiff is
the son of Damodaran, born in the wedlock with one Chiruthakutty, and
the second plaintiff is the son of the first plaintiff. Achuthan had one son
by name Karunakaran, the predecessor in-interest of the defendants.
Sekharan was a bachelor and died without any issue. Narayanan married
one Lakshmi and they had a daughter by the name of Janaki, who also
died as a spinster. The plaintiffs claimed half share in the suit schedule
property.
4. It is the case of the defendants that all the children except
Achuthan died as bachelors and Karunakaran is the only son of Achuthan.
They denied the
contention of the plaintiffs that Damodaran had married
Chiruthakutty and that the first plaintiff was the son born to them in the
said wedlock. Their further contention was that Chiruthakutty was not
the wife of Damodaran. Thus, it was pleaded that the plaintiffs are not
entitled for any share in the suit schedule property.
5. On the basis of the pleadings of the parties, the Trial Court
framed relevant issues. The Trial Court on examination of the evidence
on record held that Damodaran had a long co-habitation with
Chiruthakutty and that due to such co-habitation, it could be concluded
that Damodaran had married Chiruthakutty and that the first plaintiff
was the son born in the said wedlock. The Trial Court accordingly passed
a preliminary decree for partition of the suit property into two shares
and one such share was allotted to the plaintiffs.
KATTUKANDI EDATHIL KRISHNAN & ANR.v. KATTUKANDI
EDATHIL VALSAN & ORS.
A
B
C
D
E
F
G
H
1124
SUPREME COURT REPORTS
[2022] 7 S.C.R.
6. Aggrieved by the said judgment and decree, the first defendant
filed an appeal, A.S. No.102 of 1996, and the other defendants filed
another appeal A.S.No.107 of 1996 before the High Court. While the
matter was being argued, yet another contention was put forward by the
defendants that if the first plaintiff was born to Damodaran through
Chiruthakutty, he could only be an illegitimate child. As long as the
marriage between Damodaran and Chiruthakutty is not proved, the
plaintiffs cannot claim the right over the coparcenary property. This plea
of the defendants was without any pleading to that effect and no such
contention was put forth by the defendants before the Trial Court.
7. The High Court, on appreciation of the evidence on record,
held that the first plaintiff was the son of Damodaran. However, the
documents produced before the Court would not go to show that
Damodaran actually married Chiruthakutty and that no presumption of a
pre-existing valid marriage between Damodaran and Chiruthakutty could
arise. The High Court opined that the position of the first plaintiff to be
of an illegitimate child. That being so, the plaintiffs would not be entitled
for a share in the coparcenary property since the marriage between
Damodaran and Chiruthakutty was not a valid one. On the basis of this
conclusion, the High Court remitted the matter back to the Trial Court
for fresh consideration. The Trial Court permitted the
parties to adduce
additional evidence and, if necessary, to amend the pleadings so as to
consider the factum of marriage.
8. The plaintiffs challenged the above order of remand before this
Court and this Court allowed the appeals by setting aside the order of
remand with a direction to the High Court to decide the appeals on the
basis of the evidence on record.
9. The High Court, thereafter, heard the appeals and allowed the
same by holding that there is no evidence to establish the long co-habitation
between the father and the mother of the first plaintiff and the documents
only proved that the first plaintiff is the son of Damodaran, but not a
legitimate son, thereby denied partition of the property. As noticed above,
this judgment of the High Court is under challenge in these appeals.
10. We have heard Mr. V. Chitambaresh, learned senior counsel
for the appellants-plaintiffs and Mr. R. Basant & Mr. V. Giri, learned
senior counsel for the respondents-defendants.
A
B
C
D
E
F
G
H
1125
11. Mr. V. Chitambaresh submits that the voluminous documents
produced by the plaintiffs would show that Damodaran was the father
of the first plaintiff and Chiruthakutty was the wife of Damodaran. Since
their marriage took place more than 50 years prior to filing of the suit
(now 90 years), there is no possibility of having any documentary evidence
of their marriage. He has taken us through the various documents
produced by the plaintiffs wherein there are references to periodical
payments made to Chiruthakutty from the husband’s house. He has also
taken us through the evidence of plaintiffs and, the witnesses examined
on behalf of the plaintiffs in support of his contention. It is further argued
that the documents produced by the plaintiffs were in existence long
before any controversies between the parties arose. These documents
would conclusively show that the first plaintiff was the son of Damodaran
and Chiruthakutty and the contention of the defendants that Damodaran
died as a bachelor or without any legitimate son, cannot be believed at
all. It is further submitted that the law is in favour of declaring legitimacy,
as against bastardy. Long course of living together between a male and
female will raise a presumption of marriage between them and the children
born in such relationship are considered to be legitimate children. It is
further argued that while such presumption, made under Section 114 of
the Indian Evidence Act, 1872, is a rebuttable
one, as rightly held by the
Trial Court that the defendants have not produced any worthwhile
evidence to rebut this presumption in the present case.
12. On the other hand, Mr. R. Basant and Mr. V. Giri, learned
senior counsel for the defendants, would submit that Damodaran had
not married Chiruthakutty and that the first plaintiff was not the legitimate
son of Damodaran. The suit was deliberately filed at a belated stage
when production of conclusive evidence as to this issue was no longer a
possibility. No claim for partition whatsoever was made during the lifetime
of Chiruthakutty. It is argued that there is no proof whatsoever either of
the marriage or of the long co-habitation and that all the documents
relied upon by the plaintiffs are documents that came into existence
after the death of Damodaran except Exhibit A-3. It is further argued
that even Exhibit A-3 does not prove the marriage/long co-habitation
between Damodaran and Chiruthakutty. It is also contended that the
plaintiffs have not come to the court with clean hands. Therefore, the
court should not show any indulgence in their favour. Accordingly, the
defendants have prayed dismissal of the appeals.
KATTUKANDI EDATHIL KRISHNAN & ANR.v. KATTUKANDI
EDATHIL VALSAN & ORS. [S. ABDUL NAZEER, J.]
A
B
C
D
E
F
G
H
1126
SUPREME COURT REPORTS
[2022] 7 S.C.R.
13. We have carefully considered the submissions made at the
Bar by learned senior counsel for the parties and perused the materials
placed on record.
14. It is not disputed that the suit property belongs to one Kattukandi
Edathil family which is a Thiyya family of Calicut governed by the
Mitakshara Law of Inheritance. The said property originally belonged to
one Kattukandi Edathil Kanaran Vaidyar who had four sons, namely,
Damodaran, Achuthan, Sekharan and Narayanan. It is also admitted
that Achuthan married Kalyani and they had a son named Karunakaran
(Defendant No.1). Karunakaran married Umadevi (Defendant No.3)
and they had three children, namely, Valsan, Kasturi and Saraswati Bai
(Defendant Nos.2, 4 and 5 respectively). Sekharan and Narayanan did
not marry. The plaintiffs have contended that Damodaran married one
Chiruthakutty and they had a son by the name of Krishnan (Plaintiff
No.1). However, the defendants have contended that Damodaran never
married Chiruthakutty. The court below has recorded a finding of fact
that the first plaintiff was the son of Damodaran and Chiruthakutty, but
not a legitimate son.
15. It is well settled that if a man and a woman live together for
long years as husband and wife, there would be a presumption in favour
of wedlock. Such a presumption could be drawn under Section 114 of
the Evidence Act. Although, the presumption is rebuttable, a heavy burden
lies on him who seek to deprive
the relationship of legal origin to prove
that no marriage took place.
16. In Andrahennedige Dinohamy and Anr. v. Wijetunge
Liyanapatabendige Balahamy and Ors.1, the Privy Council laid down
the general proposition as under:
“…where a man and woman are proved to have lived together as
man and wife, the law will presume, unless the contrary be clearly
proved, that they were living together in consequence of a valid
marriage and not in a state of concubinage.”
17. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan2, once
again it was laid down by the Privy Council as under:
“The law presumes in favour of marriage and against concubinage,
when a man and a woman have cohabited continuously for a
number of years.”
1 AIR 1927 PC 185
2 AIR 1929 PC 135
A
B
C
D
E
F
G
H
1127
18. In Badri Prasad v. Dy. Director of Consolidation and
Others3, it was held by this Court that a strong presumption arises in
favour of wedlock where two partners have lived together for long spell
as husband and wife. Although the presumption is rebuttable, a heavy
burden lies on him who seek to deprive the relationship of legal origin.
Law leans in favour of legitimacy and frowns upon the bastardy.
19. In S.P.S. Balasubramanyam v. Suruttayan alias Andali
Padayachi and Others4, this Court held as under:
“4. What has been settled by this Court is that if a man and woman
live together for long years as husband and wife then a presumption
arises in law of legality of marriage existing between the two. But
the presumption is rebuttable. [See: Gokul Chand v. Parvin Kumari
– AIR 1952 231 : 1952 SCR 825]”
20. Similar view has been taken by this Court in Tulsa and Others
v. Durghatiya and Others5; Challamma v. Tilaga and Others6;
Madan Mohan Singh and Others v. Rajni Kant and Another7 and
Indra Sarma v. V.K.V. Sarma8
21. According to the plaintiffs, Damodaran had married
Chiruthakutty in the year 1940. However, there is no direct evidence of
their marriage. The first plaintiff-Krishnan was born in the year 1942.
Therefore, the question for consideration in these appeals is whether
there is sufficient evidence to prove the long co-habitation to establish
the relationship of husband-wife between Damodaran and Chiruthakutty.
22. The first plaintiff was examined
as PW-1 who deposed that
his father-Damodaran and mother-Chiruthakutty resided in the suit
schedule property. PW-1 further deposed that he shifted his residence
along with his mother after the demise of his father when he obtained a
job. PW-1 has also stated that the defendants gave a share of the income
till the death of his mother in the year 1985. PW-2 is a neighbour. In his
evidence he has stated that Kattukandi Edathil Damodaran had married
Chiruthakutty. They had resided at Kattukandi Edathil House as husband
3 (1978) 3 SCC 527
4 (1994) 1 SCC 460
5 (2008) 4 SCC 520
6 (2009) 9 SCC 299
7 (2010) 9 SCC 209
8 (2013) 15 SCC 755
KATTUKANDI EDATHIL KRISHNAN & ANR.v. KATTUKANDI
EDATHIL VALSAN & ORS. [S. ABDUL NAZEER, J.]
A
B
C
D
E
F
G
H
1128
SUPREME COURT REPORTS
[2022] 7 S.C.R.
and wife. They have a son by the name of Krishnan. In his cross-
examination, he has stated that, as per custom, some persons had
participated in their marriage. Even before marriage, Chiruthakutty had
been at Kattukandi Edathil House. PW-2 has also stated that
Chiruthakutty had rented a room at Chalapurram and after marriage,
they had stayed in a rented house and that Damodarana’s sister also
participated in the marriage. The evidence of PW-2 also shows that the
marriage between Damodaran and Chiruthakutty was a love marriage.
23. The plaintiffs have produced the birth certificate of the first
plaintiff as Ex.A-9. As per this document, the date of birth of the first
plaintiff is shown as 12.05.1942. K.E. Damodaran and Chiruthakutty
are described as father and mother. Ex.B-1 is the copy of the similar
certificate produced by the defendants. On comparing Ex.A-9 and Ex.B-
1, it is seen that some corrections have been made in Ex.A-9 with regard
to the place of birth. However, it is to be noted that in both the documents,
the name of the father and the mother of the first plaintiff are one and
the same i.e. K.E. Damodaran and Chiruthakutty respectively. Ex.A2 is
the Insurance Policy which shows name of his house as Kattukandy
Edathil. Ex. A2 dated 26.04.1966. Ex.A3 is the Secondary School Leaving
Certificate of K.E. Damodaran kept in his possession. According to him
he got the same since he is the son of Damodaran. Ex.
A4, dated
01.08.1963, is a Trade certificate issued in favour of the first plaintiff
which was issued by the Secretary of State Council for training in
vocational Trades, since he was a student of the Junior Technical School,
Manjeri. In this certificate the name of the first plaintiff is shown as
Krishnan K. S/o Sri. K.E. Damodaran. The name of the house is shown
as Edathil house, Chalappuram.
24. The plaintiffs have produced Ex.A5, the Malayala Manorama
Daily dated 16.02.1985. In this paper it is reported that Chiruthakutty,
wife of Kattukandy Edathil Damodaran, aged 75 years had expired.
The name of the first plaintiff is shown as the son of Chiruthakutty.
Ex.A6 is the true copy of a voters list of the year 1970. In this document,
the name of Chiruthakutty is shown as the wife of K.E. Damodaran.
Ex.A7 dated 24.03.1980 is the petition filed by the first plaintiff before
the village officer, Panniyankara. In this document the first plaintiff is
certified as the son of Damodaran by the village officer. The same is
dated 24.03.1980. Ex.A8 is also a similar certificate describing the first
plaintiff as the son of Damodaran by the village officer. This is dated
A
B
C
D
E
F
G
H
1129
04.05.1979. In the death certificate of Chiruthakutty dated 15.12.1985
(Ex.A10) the name of her husband is shown as Damodaran. Ex.A11 is
the Electoral card of the first plaintiff in which the first plaintiff is described
as the son of Damodaran and Chiruthakutty is described as the wife of
Damodaran. Plaintiffs have also produced several other documents such
as electoral card (Ex.A12) dated 02.11.1983, Ex.A13, a community
certificate dated 07.11.1980, Ex.A14-Marriage certificate dated
29.04.1971, Ex.A15, the receipt issued by the Life Insurance Corporation
of India in favour of the plaintiffs etc. Ex.A20 is an important document
which is a Discharge Certificate of the first plaintiff from the Military
Service wherein he is described as the son of K.E. Damodaran. Ex.A21
is the S.S.L.C. book of the first plaintiff.
25. There is also enough materials on record to show that
Chiruthakutty was getting some money from the family of Damodaran,
including in particular the letters at Exs.A22 and A23, which were
addressed to the first plaintiff by his mother-Chiruthakutty long back in
the year 1976. The Trial Court has discussed this aspect of the matter as
under:
“…..There is sufficient evidence to prove that K.E. Damodaran,
Kattukandy Edathil had married Chiruthakutty and the 1st plaintiff
is the son of Damodaran. It is the pertinent to note that the definite
case of the plaintiffs is that the family used to give income from
the family property to Chiruthakutty
till her death in the year 1985.
The plaintiff has produced Exts. A22 and A23 letters, addressed
to the 1st defendant. On going through Ext. A22 it is seen that the
same has been addressed to the 1st plaintiff by his mother
Chiruthakutty long back in the year 1976. Of course the date is
not mentioned in the letter but from the seal affixed in the document
it is seen that the same has been posted in the year 1976. In this
letter it is seen recorded that the mother went to Edathil House
and also the 3rd defendant is mentioned as Umadathi. It is also
seen from the letter that she is getting some money from the
family. In Ext. A23 also it is seen that she is getting money from
the family and there is reference to the 3rd defendant and the
other defendant i.e., the daughter of the 3rd defendant i.e. DW1
has admitted that she is called as Umadathi. So Exts. A22 and
A23 supports the case of the plaintiffs. The letters are seen
addressed to the 1st plaintiff while he was in military service. From
KATTUKANDI EDATHIL KRISHNAN & ANR.v. KATTUKANDI
EDATHIL VALSAN & ORS. [S. ABDUL NAZEER, J.]
A
B
C
D
E
F
G
H
1130
SUPREME COURT REPORTS
[2022] 7 S.C.R.
the letters it is seen that the mother has written the same when
the 2nd child was born to him and there is also enquiries with
regard to the illness of the 1st plaintiff. On going through these
letters it can be seen that the documents are genuine. I find it
difficult to conclude the same has been created by the plaintiffs to
support their case as contended by the defendants.”
26. As noticed above, the contention of the plaintiffs is that the
marriage of Damodaran and Chiruthakutty was performed in the year
1940. The first plaintiff was born on 12.05.1942 as is evident from Ext.A9.
The documents produced by the plaintiffs were in existence long before
the controversy arose between the parties. These documents, coupled
with the evidence of PW-2, would show the long duration of cohabitation
between Damodaran and Chiruthakutty as husband and wife. The first
plaintiff joined military service in the year 1963 and retired in the year
1979. Thereafter he has taken the steps to file a suit for partition of the
suit schedule property.
27. We have also perused the evidence of the defendants. We
are of the view that the defendants have failed to rebut the presumption
in favour of a marriage between Damodaran and Chiruthakutty on
account of their long co-habitation. In the circumstances, the High Court
was not justified in setting aside the said judgment of the Trial Court.
28. Resultantly, the appeals succeed and are
accordingly allowed.
The judgment of the High Court impugned herein is set aside and the
judgment and decree passed by the Trial Court is restored. Parties are
directed to bear their respective costs.
Re.: Delay in initiating final decree proceedings under
Order XX Rule 18 of the Code of Civil Procedure, 1908
29. Before parting, we deem it necessary to address a concerning
trend of delay in drawing up the final decrees under Rule 18 of Order
XX of the Code of Civil Procedure, 1908 (for short, ‘CPC’). This provision
deals with decrees in suits for partition or separate possession of share
therein. It provides as under:
“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,-
A
B
C
D
E
F
G
H
1131
(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 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 right of the several
parties, interested in the property and giving such further directions
as may be required.”
Sub section (2) of Section 2 defines the decree as under:
“(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—
(a) any adjudication from which an appeal lies as an
appeal from an order, or
(b) any order of dismissal for default.
Explanation.—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;”
30. It is clear from the above that a preliminary decree declares
the rights or shares of the 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 possession
of the divided property, then such inquiry shall be held and pursuant to
the result of further inquiry, a final decree shall be passed. Thus,
fundamentally, the distinction between preliminary and final decree is
that:- a preliminary decree merely declares the rights and shares of the
KATTUKANDI EDATHIL KRISHNAN & ANR.v. KATTUKANDI
EDATHIL VALSAN & ORS. [S. ABDUL NAZEER, J.]
A
B
C
D
E
F
G
H
1132
SUPREME COURT REPORTS
[2022] 7 S.C.R.
parties and leaves room for some further inquiry to be held and conducted
pursuant to the directions made in preliminary decree and after the inquiry
having been conducted and rights of the parties being finally determined,
a final decree incorporating such determination needs to be drawn up.
31. Final decree proceedings can be initiated at any point of time.
There is no limitation for initiating final decree proceedings. Either of the
parties to the suit can move an application for preparation of a final
decree and, any of the defendants can also move application for the
purpose. By mere passing of a preliminary decree the suit is not disposed
of. [See : Shub Karan Bubna v. Sita Saran Bubna9; Bimal Kumar
and Another v. Shakuntala Debi and Others10]
32. Since there is no limitation for initiating final decree proceedings,
the litigants tend to take their own sweet time for initiating final decree
proceedings. In some States, the courts after passing a preliminary decree
adjourn the suit sine die with liberty to the parties for applying for final
decree proceedings like the present case. In some other States, a fresh
final decree proceedings have to be initiated under Order XX Rule 18.
However, this practice is to be discouraged as there is no point in declaring
the rights of the parties in one proceedings and requiring initiation of
separate proceedings for quantification and ascertainment of the relief.
This will
only delay the realization of the fruits of the decree. This Court,
in Shub Karan Bubna (supra), hadpointed out the defects in the
procedure in this regard and suggested for appropriate amendment to
the CPC. The discussion of this Court is in paragraphs 23 to 29 which
are as under:
“A suggestion for debate and legislative action
23. 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
9 (2009) 9 SCC 689
10 (2012) 3 SCC 548
A
B
C
D
E
F
G
H
1133
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.
24. 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 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
commonsensical 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?
25. 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 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
KATTUKANDI EDATHIL KRISHNAN & ANR.v. KATTUKANDI
EDATHIL VALSAN & ORS. [S. ABDUL NAZEER, J.]
A
B
C
D
E
F
G
H
1134
SUPREME COURT REPORTS
[2022] 7 S.C.R.
to their juniors to conduct the final decree proceedings and then
give it to their clerks for conducting the execution proceedings.
26. 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.
27. 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.
28. 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.
29. 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 continuous and seamless process from the stage of filing of
suit to the stage of getting relief.”
A
B
C
D
E
F
G
H
1135
33. We are of the view that once a preliminary decree is passed
by the Trial Court, the court should proceed with the case for drawing
up the final decree suo motu. After passing of the preliminary decree,
the Trial Court has to list the matter for taking steps under Order XX
Rule 18 of the CPC. The courts should not adjourn the matter sine die,
as has been done in the instant case. There is also no need to file a
separate final decree proceedings. In the same suit, the court should
allow the concerned party to file an appropriate application for drawing
up the final decree. Needless to state that the suit comes to an end only
when a final decree is drawn. Therefore, we direct the Trial Courts to
list the matter for taking steps under Order XX Rule 18 of the CPC soon
after passing of the preliminary decree for partition and separate
possession of the property, suo motu and without requiring initiation of
any separate proceedings.
34. We direct the Registry of this Court to forward a copy of this
judgment to the Registrar Generals of all the High Courts who in turn
are directed to circulate the directions contained in paragraph ‘33’ of
this judgment to the concerned Trial Courts in their respective States.
Ankit Gyan
Appeals allowed.
(Assisted by : Aarsh Choudhary, LCRA)
KATTUKANDI EDATHIL KRISHNAN & ANR.v. KATTUKANDI
EDATHIL VALSAN & ORS. [S. ABDUL NAZEER, J.]