[Order XX Rule 18 CPC] Trial courts should initiate final proceedings suo motu after preliminary decree passed in partition suits: SC [Read Judgement]

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The Supreme Court on Monday ruled that trial courts should not adjourn partition decree matters indefinitely or wait for filing of a separate proceedings towards a final decree, once a preliminary order has been passed [Kattukandi Edathil Krishnan and anr vs Kattukandi Edathil Valsan and ors].

A Bench of Justices S Abdul Nazeer and Vikram Nath ordered that once a preliminary decree is passed by the trial court, it should suo motu proceed with the matter for drawing up the final decree.

“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,” the judgment said.

The directions were passed after noting the delays in drawing up the final decrees in such cases.

The Supreme Court Registry was directed to forward copies of the judgment to Registrar Generals of all High Courts, who in turn should pass on the directions given by the apex court to all trial courts in their respective States.

The top court was hearing an appeal against a decision of the Kerala High Court that had set aside a trial court’s decree for partition.

The appellants in the present case had claimed half the share in the disputed property.

The respondents, who were the defendants in the original suit, said the appellants were not entitled to a share as the second appellant was not the grandson of the original property-owner and thus, not an heir. They contended that out of all the siblings including the first appellant, only one had a child still alive, who was on their side.

The trial court passed a preliminary decree for partition of the suit property into two shares and one such share was allotted to the present appellants, after it found that the disputed wedlock was legitimate.

The High Court hearing the case in appeal concurred that the first appellant was the son of one of the siblings, but there was nothing on record to show that the marriage took place. It asked the trial court to hear the matter afresh after ruling that the present appellants could not stake claim to the property.

This led to an appeal before the apex court, which set aside the High Court order and in turn asked it to decide the matter on the basis of available evidence. The High Court reiterated its earlier ruling, leading to the present appeal.

The counsel for the appellants submitted that the marriage in question took place more than 50 years prior to filing of the suit (now 90 years) and there was no possibility of having any documentary evidence of their marriage.

It was added that the law, specifically Section 114 of the Indian Evidence Act, is in favour of declaring legitimacy to children born out of a couple living together for long time, which the respondents have not been able to rebut.

Counsel for the respondents contended that the suit was deliberately filed at a belated stage when putting on record evidence would be impossible. Further, no claim for partition was made while the concerned kin of the respondents was alive, it was stated.

The Bench at the outset stated that it is well settled that if a man and a woman live together for long years as husband and wife, there is a presumption in favour of a legal 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,” the Court observed.

The Court said in the present case, the documents on record showed proof a long co-habitation of the first appellant with his wife, and the respondents had not been able to rebut the same.

Accordingly, the appeals were allowed and the trial court’s order was restored.

In the judgment, the Court discussed the distinction between preliminary and final decrees in partition cases. It observed that since there is no time limitation on filing the latter, litigants and courts take their ‘own sweet time’ in filing applications towards the same.

“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,” the judgment said.

The Court cited the decision in Shub Karan Bubna where amendments to deal with such defects in proceedings were called for.

Therefore, the top court directed trial courts, on its own accord, to list such matters for steps as per the CPC soon after passing of the preliminary decree for partition and separate possession of the property.

The courts below have to do so without requiring initiation of any separate proceedings, it was emphasised.

Senior Advocate V Chitambaresh appeared for the for the appellants, and Senior Advocates R Basant and V Giri appeared for the respondents.

Read Judgment here :

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