2021(4) SCC246

2021 (4) KLJ 204

2009 (9) SCC 689

2015 (3)SCC 109

AIR 2013 SC 1010

2015 KHC 2498

ORDER20 RULE 18

2017 KHC 789

Civil rules of practice 228,238,182,187

Rule 228: Parties

In every suit for partition, all persons entitled to shares or to maintenance
shall be joined as parties, and if it is alleged that any co-owner has
alienated any portion of the joint property or his interest therein in
circumstances rendering the alienation not binding on the co-owners, the
alienee shall be made a party to the suit and the party making the
allegation shall set out the particulars of the alleged alienation in his
pleading.

1998 online scc madras 273

2009 Air sc 1406
2001 (3) klt 250
Air 1973 sc 643
2022 (7)KHc 145
2009 khc 4412

1972khc 523

2016 khc 396

2021 5 klt 721

1957 sc 577

1981 1 ilr 452

1961 klt 937

Compromise:

2009 KHC 4421

2023 2 ILR 727

2015 4 KLJ 777

1980 KHC 243

2016 2 khc 396

2022 7 khc 145

2001 KHC 727,
1991 sc 700
2009 khc 4412
2022 2 khc 692

12
KERALA JUDICIAL ACADEMY
HIGH COURT OF KERALA
Knowledge Enhancement Training (KET) programme for
Munsiffs

“Law of Partition and Final Decree proceedings-

Factors causing delay in partition suits-Challenges
and Solutions”

 Date: 25.03.2024

QUESTIONNAIRE

(The Academy has not corrected any question)

1. What is the procedure to be followed, if the partition
cannot be effected by metes and bounds due to the very
less extent of property or number of parties in the
application?

1. Ans: 1980 KHC 243 Partition Act, 1893

2. (Act 4 of 1893) is an the Act to amend the law relating
to partition. S.2 provides that whenever it appears to the
Court that by reason of the nature of the property or of
the number of shareholders or of any other special
circumstance, a division of the property cannot
reasonably or conveniently be made and that a sale of
the property and distribution of the proceeds would be
more beneficial for all the share holders, the Court may
direct sale of the property and distribution of the
proceeds. S.2 indicates that the power of sale can be
resorted to if a request is made by 'any such share
holders interested individually or collectively to the
extent of one moiety or upwards'. A sale under S.2 of
the Act is a public sale.
S.3 provides for the procedure when a share holder
applies for leave to buy after the request is made under
S.2 to direct a sale. Even when no application is made
by the parties under S.2 of the Act, if the Court comes
to the conclusion that a reasonable and equitable
method should be adopted for dividing the property
among the sharers, the Court may device such other
feasible mode for effecting partition as may appear to
be just and equitable. A sale among the sharers can be
ordered by the Court so that third parties will not
outbid the sharers and acquire the property. An auction
in a closed circle, namely, among the sharers, may
appear to the Court to be the most ideal solution in
certain cases. One or more sharers may be able to
acquire the property by offering higher amount. If a
public sale is ordered, such an opportunity may
sometimes be not available to the sharers. In the facts
and circumstances of each case, the Court may have to
deal with varied situations and different and distinct
 problems. The Partition Act does not create a bar to the
Court in adopting a ny reasonable and equitable
method for division of the property. The Scheme of the
Partition Act provides for a sale under S.2 and the
request of any of the share holders under S.3 to buy out
the shares of other sharers after an application for sale
under S.2 is made. Even when an application under S.2
is made, that does not ipso facto curtail the powers of
the Court to deal with the situation and to pass
appropriate orders for a just and equitable division of
the property or its proceeds, including an auction
among the sharers. Antony v. Joseph and Others,
2010 (3) KHC 50.
See Rule.234 of civil RP
1980 KHC 243-public sale, 2001 KHC 727, 2016 2
KHC 396, 2022 7 KHC 145
AIR 1991 SC 700-value of share
2009 KHC 4412

1(2). In order to set aside exparte preliminary decree,

whether IA in FDIA or RP is to be filed?

Ans: Petition has to be filed in the O.S.and not in FDIA as

the relief sought is against an order made in the Suit and not
in FDIA.

Petition to set aside is a separate proceedings mandate by-S.

141 CPC

Appeal, review, O9,R13 (1968 KHC 16)

1(3). What if, one of the parties, who should pay the
owelty to other party submits that he is not financially
able to pay the same? Can a final decree be passed
charging the amount on his share of property or
commissioner to be again directed to make the changes
in the CR?

Ans: A final decree can be passed creating a charge upon the

property.

If NOT ACCEPTING THE OWELTY AMOUNT HAS TO

BE DEPOSITED IN COURT-83-OP

After 2 years of death-if amount in will

(Lekshmi vs velukutti (1981 KHC 186) - So far as India is

concerned there does not appear to be any statute which
makes specific mention of owelty. But owelty has been
recognised in effecting partition. In Shahebsada Ahammed
Kasim Shah v. R. S. Hill (ILR 35 Cal. 388) owelty amount
has been recognised as a charge upon the property. In
Poovanalingam Servai v. Veerayi (AIR 1926 Madras 186)
Philips, J., observed, that even if no charge exists in law, one
can be enforced on equitable principles. In Jyoti Bhushan v.
Shiva Prasad (AIR 1943 PC 205) "owelty" was declared to
be a debt for the purpose of the U.P. Encumbered Estates
Act, differing from the view of the High Court of Allahabad
that the amount represented a part of the share of the
concerned person in joint family property. )

2. A suit for partition was referred for mediation. The

subject matter in dispute was settled between parties and
the terms of settlement was signed by both parties. The
terms were lawful and the memorandum of settlement
was accepted. As per the terms, the properties were
specifically described and allotted to both plaintiff and
defendant. The suit was decreed in terms of
memorandum of settlement. Plaintiff now initiated Final
decree proceedings and

respondent filed objection stating that matter already

settled and decree passed is to be considered as a final
decree. Can the decree be considered as a composite
decree or is it a preliminary decree? Or Should an
Advocate commissioner and surveyor be appointed in
the final decree proceedings for ascertaining and
allocating the properties?
Answer:-2022 2 KHC 692
In case where parties entered into a compromise and clearly
admitted that they were in separate and exclusive possession
of the properties and the same had already been allotted to
them and since parties also admitted that they were in
possession of their respective shares, no final decree or
execution was required to be filed. It is demonstrable that
the compromise application does not contain any clause
regarding the future cause of action. Parties were absolutely
conscious and rightly so, that their rights had been fructified
and their possession had been exclusively determined.
Decree drawn up incorporating the compromise, held, is a
final decree and hence executable.
Reference:-
2012 KHC 4141 // AIR 2012 SC 1586
2023 KHC 6647 -Trinity infraventures vs M/s M.S
Murthy 2023 KHC Online 6647
If needed to support settlement commission can be
appointed/parties can produce plan - no need of filing
FDA
2022 2 KHC 692
Share list, stamp duty,

3.Preliminary decree was passed in the suit. Thereafter,

plaintiff filed final decree application. Defendants are
exparte in the final decree proceeding. An advocate
commissioner was deputed to partition the property. He
filed report and plan. It is stated that a portion of the
plaint schedule property is used as a public pathway by
neighbouring property owners and the plaint schedule
property was partitioned excluding the said portion.
Counsel for the plaintiff submitted that they have no
objection to the commission report and sought for
passing a final decree in tune with the commission
report. Can the court act on the said report.
KJA says-Yes. If CR reports that the portion of property is
dedicated to public way, then the judge can act on the CR
and if necessary, direct the parties to produce necessary
documents/records showing dedication of property for a
public pathway.
No. In this case, a preliminary decree was passed in the suit
without there being any mention of the existence of a way
through the property or without there being any exclusion
of the said portion. The court, while considering the final
decree is bound to separate the shares as directed in the
preliminary decree. The entire plaint schedule property is to
be partitioned and a portion cannot be left out.
R120-
4.Final decree proceedings pending in a suit. One of the
parties file review petition to review preliminary decree
claiming that there is a Will in his favour. Can the
validity of Will may be considered at review application
stage. Or the review is to be allowed and final decree
application be dismissed.
No. Validity of a will cannot be considered in a review
application. it has to be raised during the trial of the suit
itself because the preponder of the will has to prove the will
in accordance with section 68 of the Evidence Act.
If party died after preliminary decree, and will - can be
considered in final decree
Right of parties cannot be considered in review.
O.47,R1
R.42 CRP-IA proved by affidavit .Enquiry is not right
away an option
 Some of the issues faced in Court in disposing of final
5.

decree application are

1) Delay in filing the Commission Report.

Often, the Commissioner reports lack of a
scheduled date from the Surveyor, while the
Surveyor reports non-cooperation from the
Commissioner. -R.152 CRP, R9 -can fix date

2 )Another issue is that the applications for

remitting back the Commission Report are
being frequently filed which will contribute
to the delay.

3) Additional steps are involved when a

building is included in the property, for the

assessment of its valuation.

PWD engineer,whether expert?- by qualification is
expert,shall not use the manual as opinion, but by skill
and experience
Data part and opinion part

Could you please explain how to tackle these

situations?
6In a suit for partition of the year 1980, the plaintiff claims
that the plaint schedule properties are coparcenary
properties and the plaintiff and the defendants 1 to 3
coparceners. The defendants contended that the property is
self-acquired property and hence not liable to be partitioned
as claimed by the plaintiff. The court found that the plaint
schedule properties are coparcenary properties and a
preliminary decree was passed on 23.03.2000 allotting the
shares of the plaintiff and his male children. The male
children of the plaintiff filed a final decree application in
the year 2010. Now an application is made by the daughters
of the plaintiff's daughter for passing a supplementary
preliminary decree allotting their shares in the plaint
schedule properties taking into consideration the
amendment in the Hindu Succession Act, 1956. The
respondents/ children of the plaintiff filed an objection
stating that the amendment in Section 6 of the Hindu
Succession Act, 1956 is not applicable to coparcenary
property in Kerala as the Joint Hindu Family system is
abolished in Kerala, by Kerala Joint Hindu Family System
(Abolition) Act, 1975. Are the daughters of the plaintiff
entitled to share in the plaint schedule properties?
The daughter's daughter of the plaintiff is not entitled to
claim any right over the property as the property is
coparcenary property as the amendment in Section 6 of the
Hindu Succession Act, 1956 does not apply to coparcenary
property in Kerala as the Joint Hindu Family system is
abolished in Kerala, by Kerala Joint Hindu Family System
(Abolition) Act, 1975.
Babu v. Ayillath Arunapriya, reported in 2012 (4) KHC
445
" 17. The claim of one-half share put forth by the plaintiff
is on the strength of amendment to S.6. The (Amendment)
Act, 2005 was enacted to remove the discrimination
contained in S.6 of the Hindu Succession Act, 1956 by
giving equal rights and liabilities to the daughters in the
Hindu Mitakshara coparcenary property as the sons have.
The said Act came into force with effect from 09/09/2005.
The Legislature did not specifically make the provisions
retrospective. A careful reading of sub-sections (1) and (5)
of S.6 of the said Act indicates that the Act is prospective.
It creates substantive right in favour of the daughter a right
of coparcener from the date when the amended Act has
come into force, i.e. 09/09/2005. S.6, as substituted by Act
39/2005 is extracted for ready reference:
"6. Devolution of interest in coparcenary property. - (1) On
and from the commencement of the Hindu Succession
(Amendment) Act, 2005, in a Joint Hindu family governed
by the Mitakshara law, the daughter of a coparcener shall, -
(a) by birth become a coparcener in her own right in the
same manner as the son; ....
(b) have the same rights in the coparcenary property as she
would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenary property as that of a son, and any reference to
a Hindu Mitakshara shall be deemed to include a reference
to a daughter of a coparcenar:
Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including
any partition or testamentary disposition of property which
had taken place before the 20th day of December, 2004."
18. The aforementioned provisions give no room for
doubt. The provision applies only to coparcenary property
surviving as on the date of enactment of the amended
provision of the Hindu Succession Act. As noticed above,
in the State of Kerala, after the enactment of Act 30/1976,
coparcenary property ceases to exist and all the members in
the coparcenary who till then were joint - tenants become
tenants - in - common as if a statutory partition had taken
place among all the coparceners. S.4 of the said Act
provides that all members of an undivided Hindu family
governed by the Mitakshara law holding any coparcenary
property on the day the Act comes into force shall be
deemed to hold it as tenants - in - common, as if a partition
had taken place among all the members of that undivided
Hindu family. Therefore, on the day on which the Hindu
Succession Amending Act No. 35/2005 came into force,
there was no coparcenary property existing within the State
of Kerala consequent to the passing of Act 30/1976. "

7A common passage was kept joint in a registered partition

deed between parties. Can the plaintiff file a suit for
partition of this common passage subsequently upon the
ground that the characteristics of the property has changed?
Under Hindu law, a common passage kept for ingress
and egress is indivisible.Therefore, if a common way is
kept joint by a registered partition suit, the plaintiff
cannot file a subsequent suit for partition stating that
the nature of the way was changed ( reference
Ragunath Bardhan V Biswanath Bardhan) AIR 2004
Ori 5

 It can be partitioned

8 Whether the question of abatement would arise after

passing of the preliminary decree and during the final
decree stage?
The question as to the effect of the death after the
preliminary decree had become final, and it was held
following the Privy Council decision in 51 Ind App
321 : (AIR 1924 PC 198), that, in such circumstances,
the suit could not be dismissed, and, therefore, there
was no question of abatement.
No abatement will arise on account of the death of a
party after preliminary decree and before final decree
and if one of the plaintiffs or defendants dies after the
conclusion of the hearing and before pronouncing
judgment in a suit, it is not necessary that the legal
heirs be substituted. Death after judgment does not
cause abatement of the suit.
No abatement ,right is crystallised in preliminary
decree.
AIR 1962 Pat 2852
AIR 1924 PC 198
1995 (1) SCC 407

Baijnath Ram And Ors. vs Mt. Tunkowati Kuer

And ors: AIR 1962 PAT 285
There is now a unanimity of judicial opinion that in a
suit requiring a preliminary decree and a final decree,
there can be no abatement of the suit on account of the
death of a party after preliminary decree and before
final decree. Where, therefore one of two or more
plaintiffs or defendants dies after the conclusion of the
hearing and before, delivery of judgment in a suit, it is
not at all necessary to substitute the heirs and legal
representatives of the deceased plaintiff or defendant.
 If no appeal is preferred, the decree becomes final, and
the execution of the decree may be taken out by or
against the legal representative of the deceased party.
1962 pat 285
1924 PC 198
1995 1 SCC 407

9 During final decree proceedings advocate

commissioner reports that the property is

not partible, then what is the procedure to

be followed.
Answer. Same answer to question no. 1. The court has
to enquire as to whether any of the party is willing to
purchase as the parties have pre emptive right. If
parties are not willing, property is to be sold in auction
and the proceeds are to be shared as per respective
share.
10 In a suit for partition exparte preliminary decree is
passed and case posted for steps. Plaintiff/Petitioner filed
IA for appointment of advocate commissioner. Whether
notice to the respondent /defendant in IA is required?
Final decree is a continuation of a suit. Hence notice is
not necessary. Ref question 30
 Notice even though not necessary ,not wrong if

issued
2009 9 SCC 689
124 Art limitation
11 Defendant filed FD(IA). In preliminary decree passed in
2018, he was not allotted share as he did not pay court fee.
Supplementary preliminary decree application was filed by
the defendant and thereafter one among the defendants
died. Whether the LRs of the deceased defendant should be
impleaded in the suit after reopening the same. Whether the
court fee is to be realized from the defendant at the time of
passing supplementary preliminary decree.

Ans: In this case the suit was decreed and preliminary

decree was passed in 2018. The defendants were not
allotted any share as they did not pay any court fee. So,
they filed petition for passing second final decree.
However, one of the defendants had deceased.
So, suit has to be reopened and the legal heirs are to be
recorded in suit.After that supplementary preliminary
decree is to be passed declaring the shares of the
defendants/ legal heirs.
Then the LRs are to be recorded as legal heirs in the
second final decree petition and later the second final
decree can be passed.
However, in this case the deceased defendant ought to
have allotted shares in the preliminary decree even if
court was not paid. In K T Thomas Vs. Anna @
Accamma John & Ors 2018 (3) KHC 749 (para 10)
it was held that, “It has been repeatedly mentioned in
the impugned order that the 3rd defendant's share was
not declared in the preliminary decree for want of
payment of requisite court fee. It is my definite view
that such a practice is not only improper, but also
illegal. Order XX Rule 18 of the Code, quoted above,
will clearly show that where a court passes a decree for
partition of property or for separate possession of a
share therein, the court may pass a preliminary decree,
if the partition or separate possession cannot be
conveniently made without further enquiry. It is
mandatory that the preliminary decree should declare
the rights of the several parties interested in the
property. The declaration of rights of the parties to a
partition suit is not dependent on payment of court fee
by the defendant/defendants. In the plaint itself, the
plaintiff must have claimed partition and separate
possession of the joint properties asserting his share, as
well as the shares to which the defendants are entitled.
Once the court accepts the plaintiff's case and finds that
calculation of the shares in the plaint is correct, it
becomes the bounden duty of the court to pass a
preliminary decree, declaring the rights of the several
parties, including the share interest of the
defendant/defendants. Payment of court fee by a
defendant can be insisted only for separation of his
share. It is therefore clear that the court below
committed a grave legal error in not declaring the share
of the contesting defendants, merely because they
failed to pay court fee. Sub-section (3) of Section 37 of
the Kerala Court Fees and Suits Valuation Act, 1959
also makes the position clear, wherein it is stated that a
defendant claiming partition and separate possession of
his share of property shall pay fee on his written
statement computed on half the market value of his
share or at half the rates specified in Subsection (2) of
the Section, according as such the defendant has been
excluded from possession or is in joint possession.
Therefore, it will be clear that payment of court fee by
a defendant is not a condition precedent for declaring
his share. It affects only actual partition and separation
of his share in the property.”
 12In FDA filed for execution of preliminary decree with
respect to partition of property ,a survey commission is
appointed along with surveyor to measure out the petition
schedule property for identification of each share. The
survey commission filed an interim report stating that the
parties are not cooperating by providing title deeds and
other documents necessary for identification of the
properties. In such a situation will it be possible for the
court to close the FDA?
Direct party to produce the document.
13In a final decree proceeding, the commissioner measured
the property and reported that a third party was in
possession of a portion of the scheduled property. The
commissioner filed a report dividing the remaining portion
of the property. No objection was filed against the
commissioner's report. A final decree was passed based on
the same. After one-year final decree petitioner filed a
petition to reopen the final decree and to identify the entire
property. Whether such a petition is
Maintainable? 2021 (4) KLT 146
This is a petition filed for reopening the final decree
and identifying the entire property. The parties were
present during the entire proceedings of final decree
and limitation period for preferring an appeal is already
over. The petitioner herein kept silence until the final
decree is passed and thereafter waited for another year
to file this petition. Under the doctrine of finality and
immutability of judgment, indeed a decision that has
attained finality become immutable and unalterable
and no longer can be modified in any respect. This
is a fundamental principle in judicial system, without
 which litigation would be endless. The silence of the
petitioner during the proceedings means that they were
negligent in protection of their cause. Hence such a
petition is not maintainable.
2021 4 KLT 146-JV August

14When a petition under section 2 of the Partition Act is

filed in a suit for partition, should it be considered only
after the passing of a preliminary decree?
Answer: A Court sale of the property under S.2 of the
Partition Act, 1893 can be resorted to only when it
appears by(1) reason of nature of the property to which
the partition to be effected or(2) of the number of
shareholders therein or (3) of any other special
circumstances,(4) a division of property by metes and
bounds cannot be reasonably or conveniently be made.
For directing a sale under S. 2 of the Partition Act, a
request of the shareholders interested individually or
collectively in the property in the suit to the extent of
one moiety or upwards for the sale of property and its
distribution is a sine qua non for directing a sale.
Only in preliminary decree, court determines(1) who are
the shareholders,(2) their respective shares and interest
therein; so an application under section 2 can only be
entertained after preliminary decree.
Ref:(1)Badri Narain Prasad Choudhary and Others v. Nil
Ratan Sarkar, 1978 KHC 561.(2) Geetha M.V and other
V. M.V. sherry and others (2022 (1) KHC 224)

15Partition is not a transfer, but would a suit for

partition be maintainable in a situation where
proceedings under the SARFAESI Act had been
initiated?

Answer: Honble SC held in 2018 (2) KHC 883 and In

Jagdish Singh (2014 (1) SCC 479) “this Court after an
elaborate consideration of the provisions of the
SARFAESI Act, particularly, S.2(zf), S.2(zc), 5.13(1),
5.17, 5.18 and 5,34, took the view, on almost similar
facts, that a suit for partition would not be maintainable
in a situation where proceedings under the SARFAESI
Act had been initiated. It was also held that the remedy
of any person aggrieved by the initiation of
proceedings under the SARFAESI Act lies under S.17
which provides for an efficacious and adequate remedy
to a party aggrieved.”

Paragraph 24 of the report in Jagdish Singh (supra)

which make the above position clear may be usefully
extracted below:
"24. Statutory interest is being created in favour of
the secured creditor on the secured assets and when
the secured creditor proposes to proceed against the
secured assets, sub-section (4) of S.13 envisages
various measures to secure the borrower's debt. One
of the measures provided by the Statute is to take
possession of secured assets of the borrowers,
including the right to transfer by way of lease,
assignment or realising the secured assets. Any person
aggrieved by any of the "measures" referred to in sub-
section (4) of S.13 has got a statutory right of appeal
to the DRT under S.17. The opening portion of S.34
clearly states that no Civil Court shall have the
 jurisdiction to entertain any suit or proceeding "in
respect of any matter" which a DRT or an Appellate
Tribunal is empowered by or under the Securitisation
Act to determine. The expression "in respect of any
matter" referred to in S. 34 would take in the
"measures" provided under sub-section (4) of S.13 of
the Securitisation Act. Consequently, if any aggrieved
person has got any grievance against any "measures"
taken by the borrower under sub-section (4) of S.13,
the remedy open to him is to approach the DRT or the
Appellate Tribunal and not the Civil Court. The Civil
Court in such circumstances has no jurisdiction to
entertain any suit or proceedings in respect of those
matters which fall under sub-section (4) of S.13 of the
Securitisation Act because those matters fell within the
jurisdiction of the DRT and the Appellate Tribunal.
Further, S.35 says, the Securitisation Act overrides
other laws, if they are inconsistent with the provisions
of that Act, which takes in S.9 CPC as well."
2014 (1) SCC 479
2019 (14) SCC 788
16In a suit for partition, one of the defendants is set exparte.
The plaintiff and remaining defendants appeared for
mediation and the matter was settled in mediation by
allotment of shares to the parties to the mediation. No share
allotted to the defendant who was exparte. Can a decree be
passed in terms of the mediation agreement? If so, what is
the decree to be passed against the exparte defendant?
Answer. In a suit for partition all the legal heirs of the
intestate are necessary parties. Mediation agreement binds
only the parties who have signed the mediation agreement.
Admittedly, the defendant who was set exparte is a legal heir
of the intestate and hence a necessary party to the suit.
Hence the mediation agreement between the plaintiff and the
other defendants without the junction of the defendant who
is also admittedly a legal heir is not lawful. Hence the court
shall decline to accept the mediation agreement and no
decree shall be passed in terms of the mediation agreement.
The trial of the suit can be proceeded with to dispose of it on
merits.
In a partition suit after passing the preliminary decree
17

and the case posted for taking steps u/O. XX R.18 CPC.
But, the parties are not taking steps U/o XX R. 18 after
providing sufficient opportunities. What is the
procedure to be adopted?
Answer : In kattukandi Edathil Krishnan and Another
V. kattukandi Edathil Valsan & others 2022(3) KLT
924, the supreme court held that when the Trial Court
passes preliminary decree, 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
R.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 R.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.
So, the only remedy directed the party to take steps and
give adjournments.
In practice some courts do that the suit is closed for the time
being and when the step taken by either party suit is revived.
But, it is against the direction of the appellate court in the
above mentioned decision.

18A preliminary decree was passed allotting 1/2 share to

plaintiffs together and 1/2 to the defendant. In the final
decree, the defendant was exparte and his share was not
mentioned in the final decree but included in the C2
(a)survey sketch. Now the defendant is no more and the
legal heirs filed supplementary final decree. Whether the
petition is allowable?
A.The petition is allowable.Once a preliminary decree
was passed,there is no necessity to make an application
under Order XXII Rule 3 to implead the legal
representatives.

191. In a suit for partition, the plaint averments itself show

that there are some other movables and other immovable
properties of the deceased, but which are not included in the
present suit. In such cases, can the court ignore the matters of
other properties left out. Is the plaintiff duty bound to
include all his claims in the present suit itself?
Answer: Usually partial partition is not permitted.
Generally it is for the plaintiff to include all the
properties in the suit. And in some decisions, it is stated
that the defendant can include the properties left out by
the plaintiff if he so desires. Doctrine of partial partition
is discussed in 1992 KHC 1834. In 1994 KHC 1186, the
Hon’ble Apex Court held that “a suit for partial partition,
in the absence of the inclusion of other joint family
properties and the impleadment of the other cosharers
was not warranted in law.” There are divergent views.
Justice V R Krishnaiyer in 1970 KHC 198, held that “In
my view, the argument that a suit for partition of joint
family property is bad if some item or other is omitted is
unsound although, normally, such a suit should embrace
all the assets of the family. There may be circumstances
in which practical considerations may justify the
institution and continuance of a suit for partition where
certain items of coparcenary property are not included.
The key words of the Supreme Court ruling are
"considerations of convenience and the larger interest of
justice on the facts and circumstances of the case".
Therefore, there is no legal inhibition, if there are
justifying features, in allowing a suit for partial
partition.” In 1986 KLT 1100, it was held that “There is
no rule of law which says that a party suing for partition
will have to include all the properties to which he is
entitled along with others, whatever be the capacities in
which they claim partition regarding different items. O.2
R.2 of the Code of Civil Procedure is also applicable
only in cases where the claim is based on the same cause
of action. The rule of partial partition is only one of
prudence and convenience. At any rate the bar of partial
partition or O.2 R.2 of the Code of Civil Procedure could
only apply to joint tenancies where the cause of action is
the same and not to tenancies-in-common where the
cause of actions are distinct and separate. Prohibition
against partial partition even in joint tenancies is only a
rule of construction, prudence and convenience based on
the consequent difficulties and inconvenience and not a
rule of law which is invariably applicable in all cases.” It
was further held that “It may be always desirable, in
order to avoid multiplicity of suits and consequent
harassment and inconvenience that as far as possible all
the properties should be included even in a suit for
partition of coownership properties. But in such cases it
is not essential that all the properties held in common
should be brought in the common hotchpot in the same
suit. Even in such cases, depending upon the facts and
circumstances and the nature of properties, it is
competent for the court to order the plaintiff to include
the remaining properties also subject to the question of
jurisdiction. A suit for partition of coownership
properties cannot be thrown out on the ground of partial
partition. The ordinary rule that a suit for partition is not
maintainable cannot apply in case of coowners having
distinct rights. Where the causes of action and the claims
are not identical, it may not be desirable to insist on the
compliance of the rule against partial
partition.”..........”The rule against partial partition is only
one of equity and convenience. Therefore, it is better to
limit the rule in its application to properties over which
the parties have community of interest and unity of
possession. If partial partition can be had without
inconvenience to the other sharers and if it will not stand
in the way of equities being adjusted, it is not necessary
to insist that all properties will have to be scheduled.
Plaintiff is the master of the litigation. Normally he is
the person to decide what are the reliefs to be claimed
and who are all to be impleaded. Of course, these are all
not to be left to the sweet will and pleasure of the
 plaintiff. His choice could always be only subject to the
relevant provisions of law. But normally he cannot be
compelled to fight persons against whom he doesn't
want to fight. So also he cannot be compelled to
schedule properties which according to him are not
partible. As earlier stated these are not hard and fast
propositions.” Thus, it can be concluded that, court
cannot insist on for including all the properties, even
though the trend of partial partition is bad in law.

20. In a suit, one of the sharer is not included as not

known for years. But the defendants did not raise that
fact in the written statement. During trial of the suit, it
was brought out in the cross-examination that one of the
sharer is not made a party, and
the same was brought to the notice of the
court only at the time of final hearing. In such cases, after
taking steps to implead him, whether once again trial is to be
conducted or the court can directly proceed with the case
and pass judgment, if the new sharer does not appear before
the court?

Answer :- Court cannot proceed with the materials on

record and pass judgment,as the necessary and
consequential amendments are to be brought out in the
pleadings regarding the share of the person, and hence,
evidence needs to be taken afresh.
R.228

20Whether the period of limitation for execution of the

final decree commence on the date when the final decree
is pronounced or when it is engrossed in the stamp
paper?
The aforesaid question was considered by Hon’ble
apex court in the case of Hameed Joharan v. Abdul
Salam reported inAIR 2001 SC 3404, wherein it was
held that the starting point of period of limitation for
final decree application commences when the decree is
passed and not when it is engrossed in the stamp
paper.
The said ratio was upheld by the full bench of Apex
court in the case of Chiranji Lal v. Haridas reported in
AIR 2005 SC 2564. The relevant portion of the
decision is referred below for easy reference.
“There is no statutory provision prescribing a time
limit for furnishing of the stamp paper for engrossing
the decree or time limit for engrossment of the decree
on stamp paper and there is no statutory obligation on
the Court passing the decree to direct the parties to
furnish the stamp paper for engrossing the decree. In
the present case the Court has not passed an order
directing the parties to furnish the stamp papers for the
purpose of engrossing the decree. Merely because there
is no direction by the Court to furnish the stamp papers
for engrossing of the decree or there is no time limit
fixed by law, does not mean that the party can furnish
stamp papers at its sweet will and claim that the period
of limitation provided under Art.136 of the Act would
start only thereafter as and when the decree is
engrossed thereupon. The starting of period of
limitation for execution of a partition decree cannot
be made contingent upon the engrossment of the
decree on the stamp paper. The engrossment of the
decree on stamp paper would relate back to the date
 of the decree”
KJA 2012 3 SCC 548

21The right of the plaintiff in the property as per the

preliminary decree is sold to a stranger pending final
decree application as per commission report and plan in
FDA. Subsequently Preliminary decree was set aside by
the appellate court. What is the right of the purchaser ?
Is he entitled to sue on behalf of the original plaintiff?
Answer: The right of the original plaintiff is based on the
preliminary decree. In preliminary decree, the shares of the
parties are decided. However only after final decree
proceedings, the right over a particular area will be absolute.
If the preliminary decree is set aside, the right based on
which the transfer is not there. The original plaintiff did not
hold any right in the aforesaid property. Further S. 52 of
Transfer of property Act applies. Sec 52 reads as follows:-
During the pendency in any Court having
authority within the limits of India excluding
the State of Jammu and Kashmir or established
beyond such limits by the Central Government
of any suit or proceedings which is not
collusive and in which any right to immovable
property is directly and specifically in question,
the property cannot be transferred or
otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any
other party thereto under any decree or order
which may be made therein, except under the
authority of the Court and on such terms as it
may impose.
Explanation.—
For the purposes of this section, the pendency
of a suit or proceeding shall be deemed to
commence from the date of the presentation of
the plaint or the institution of the proceeding
in a Court of competent jurisdiction, and to
continue until the suit or proceeding has been
disposed of by a final decree or order and
complete satisfaction or discharge of such
decree or order has been obtained, or has
become unobtainable by reason of the
expiration of any period of limitation
prescribed for the execution thereof by any law
for the time being in force.
Here the transfer is conducted during the final decree
proceedings. The right transferred to the purchaser is on the
strength of preliminary decree. Even if he stands in the
position of the original plaintiff, when his right goes on
setting aside the preliminary decree, the purchaser's right
becomes non -est in the eyes of law. Further the latin maxim
nemo dat quod non habet means “no one can give what
they do not have.” when the right itself is declared not to be
there, the transfer made by the original plaintiff becomes
null and void. The pendente lite transferee cannot claim the
protection of a bona fide purchaser.
Refereed case:- G.T. Girish Vs Y. Subba Raju (D) 2022
Livelaw (SC) 61
A transfer which is made lis pendens it is settled
law, is not a void document. It does create rights
as between the parties to the sale. The right of the
party to the suit who conveys his right by a sale is
extinguished. All that Section 52 of the Transfer
Property Act provides is that the transfer which is
made during the pendency of the proceeding is
subjected to the final result of the litigation

Equally, the Principle of Lis Pendens is, not to be

confounded with the aspect of good faith or
bonafides. In other words, the transferee or the
beneficiary of the property, which is disposed of
by a party, cannot set up the case that he acted
bonafide or in good faith.

The sine qua non for the Doctrine of Lis Pendens

to apply is that the transfer is made or the property
is otherwise disposed of by a person, who is a
party to the litigation. The Doctrine of Lis Pendens,
only subject, however, the transfer or other
disposition of property to the final decision that is
rendered. The person/party, who finally succeeds
in the litigation, can ask the court to ignore any
transfer or other disposition of property by any
party to the proceeding. This is subject to theto the
condition that transfer or other disposition is made
during the pendency of the lis
As purchaser is a Pendente lite transferee he has no right to
sue and is bound by decree.
In a Final decree proceedings the property is in occupation
22.

of strangers and several houses of third parties also seen in

the property. Some defendants who were exparty in the suit
had already transferred their share prior to the suit in favour
of these third parties.What was sold was not share in the
property but a specific plot with clear extent and
measurements.The strangers have clear boundaries for their
specific plots.Whether these third parties are to be
impleaded as parties in the FDA.What is the correct
procedure in such cases?
Ans–The passing of a preliminary decree in a suit for
partition does not automatically prevent the addition of
new parties . Additional parties can only be added if none
of the issues settled by the preliminary decree would need
to be reopened. The court may allow the addition of parties
on the condition that further proceedings will be based on
the preliminary decree and none of the settled issues will be
re-agitated due to the new party not being involved earlier.
Whether to allow the addition of a new party will be
decided by the court based on the specific circumstances of
each case.

“–We do not, therefore, find it possible to agree wholly

with the principle laid down in either of the two sets of
rulings cited before us, as, in our opinion, (it would
not be right either to completely rule out the addition
of parties after the passing of a preliminary decree or
to recognise an unrestricted power to allow the
impleadment of additional parties even after the
preliminary decree so as to rip open matters already
decided and settled by the preliminary decree. As we
have already indicated the correct view seems to us to
be that the power of the court to implead additional
parties at a stage subsequent to the passing of a
preliminary decree in an action for partition or
redemption must be limited to cases where such
impleadment of additional parties would not involve
the ripping open of any of the matters already dealt
with in the preliminary decree and the case can be
proceeded with the additional parties on record on the
basis of the determination already given in the
 preliminary decree.”NEELAKANTA PILLAI v.
AYYAPPAN PILLAI (AIR 1978 Ker 152 )

23In a suit for partition, a preliminary decree was

passed for partition of ancestral property of plaintiff’s
father. Later, his successors filed another suit for
partition of his personal property. The defendants
contend that partial partition of one person’s property
is not possible. The subsequent suit is barred by res
judicata and Order 2 Rule 2 CPC. Is the second suit
maintainable?
Gopalan vs. Vasu : 1986 KHC 281 There is no rule of law
which says that a party suing for partition will have to
include all the properties to which he is entitled along with
others, whatever be the capacities in which they claim
partition regarding different items. O.2 R.2 of the Code of
Civil Procedure is also applicable only in cases where the
claim is based on the same cause of action. The rule of
partial partition is only one of prudence and convenience. At
any rate the bar of partial partition or O.2 R.2 of the Code of
Civil Procedure could only apply to joint tenancies where
the cause of action is the same and not to tenancies-in-
common where the cause of actions are distinct and separate.
Prohibition against partial partition even in joint tenancies is
only a rule of construction, prudence and convenience based
on the consequent difficulties and inconvenience and not a
rule of law which is invariably applicable in all cases. The
argument that even in the case of joint family or tarwad a
suit for partition will always be bad for the simple reason
that some item was omitted is unsound, although for the
sake of convenience and adjustment of equities, such a suit
should cover all the joint family or tarwad properties. There
may be instances in which even in the case of a joint family
or tarwad practical considerations may justify institution and
continuance of suits for partition without including all the
joint family or tarwad properties. A second suit for partition
may not be barred where the omission to include those items
in the previous suit was for good reasons. Judicial
pronouncements in this respect lay down only a rule of
construction, prudence and convenience in relation to the
partial partition. It is not an inflexible proposition of law. It
is always subject to exceptions in appropriate cases.
Parameswara Menon v. Sachidananda Menon ( - 1970 KLT
1031), wherein a suit for partition without including all the
properties was ordered to continue, itself was a case of joint
family properties. In that decision it was observed:
"The argument that a suit for partition of joint family
property is bad if some item or other is omitted is unsound
although normally, such a suit should embrace all the assets
of the family. There may be circumstances in which
practical considerations may justify the institution and
continuance of a suit for partition where certain items of
coparcenary property are not included. There is no legal
inhibition, if there are justifying features, in allowing a suit
for partition.
When there are certain items which are omitted from the
earlier suit for good practical reasons the second suit will not
be barred".

Is it possible to add additional properties in the previous suit

at the stage of preliminary decree?
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 it's 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 S.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 covered by it, a preliminary decree is regarded as
embodying the final decision of the court passing that
decree.

241)Final decree was passed. In final decree petition,

defendant no 6 was set exparte. Now D6 filed a petition
to set aside the exparte order,petition to receive court
fee and also petition to reopen the final decree.
Whether these petitions are allowable?
Petition to set aside the order passed is maintainable.
Other option available is to pass supplementary final
decree,for that exparte order need not be set aside.D6
can file petition to pass supplementary final decree,in
that after hearing his contentions supplementary final
 decree can be passed.
In 1961 KLJ 793 ,Kunjan Vasudevan & Ors Vs.
Saraswathi & Ors held as follows
A suit for partition must be deemed to be pending until
the final decree is passed (see AIR. 1940 P.C.11) and a
defendant who chose to remain exparte and who is
aggrieved by the decree must get it set aside by
resorting to one of the well known modes provided by
the Code such as an application to set aside the decree,
or appeal or review.

One of the reasons for the delay in partition suit.

25 .

Delay in completing service of summons in time.

Because in many cases there may be several number of
defendants and many of them will be residing outside
the jurisdiction of the court. In such cases availability of
the address and taking steps in correct address will take
much time. In such circumstances, is it possible to
publish notice of the suit in the local daily or daily
having circulation in the particular district as
mandatory step in every partition suit to lessen the
service of summons on every defendant?
In my view, in such a circumstance necessary
amendments should be incorporated in the Kerala civil
rules of practise as well as in the code of civil
procedure to address the above issue.
261. Whether appointment of private surveyors a good
practice with respect to measurement of properties, as delay
in most cases are caused by late submission of commission
reports?
Yes . Appointing private surveyors from the panel produced
by the party is a good practice.

2. Interpretation of the term 'family' while determining

the fee under Kerala Stamp Act. Sec 2 (f) 2 (k)
What are the equities and reservations to be kept in mind
27

while passing a final decree?

For example, allotment of house if any, in the property
to be allotted to a minor child
or woman?
a. Equities and reservations are used synonymously
but are different. Explained in, Pathumma & Ors
Vs. Muhammed ILR 2015 (1) Ker. 941, 2015 1
KHC 756 “In a claim for reservation, the burden
is on the person making the claim to establish that
for valid reasons, the property is to be excluded
from the partible assets. The essential distinction
between the claim for reservation and claim based
on equity is that if the claim for reservation is
proved, it results in exclusion of the property
from partition and the claim for working out
equity will only result in allotment of the property
in favor of that person, which will certainly be
included in the partible assets. The claim for
reservation shall be considered while passing a
preliminary decree and the equities regarding
allotment may be relegated to the final decree
proceedings.”
b. If a property cannot be partitioned without diminishing
the intrinsic value of the property, the Court may resort
to other measures considering equitable grounds. T P
Joseph & Ors Vs. Ronald T Dennison & Ors 2020
(6) KHC 65 it was held, “The normal jurisdictional
province of a court is to divide the property by metes
and bounds and allot it to the shareholders as per their
entitlement declared in the preliminary decree.
However, when this course is found by the court to be
either impracticable; or not reasonably possible; or not
convenient; or inequitable; or likely.. At the same time,
there is a concurrent finding of fact recorded by the
courts below that the suit property is so small, that it
cannot be conveniently and reasonably partitioned by
metes and bounds, without destroying its intrinsic
worth. This finding is unassailable. In our opinion in
such a situation, the Court can devise such other
feasible mode for effecting partition as may appear to it
to be just and equitable in the circumstances of the
case. 20. The suit property, being incapable of division
in specie, there is no alternative but to resort to the
process called Owelty, according to which the rights
and interests of the parties in the property will be
separated, only by allowing one of them to retain the
whole of the suit property on payment of just
compensation to the other. As rightly pointed out by
K. Subba Rao, C.J. (speaking for a Division Bench of
Andhra High Court in A.I.R. 1958 Andhra Pradesh
647), in cases not covered by Sections 2 and 3 of the
Partition Act, the power of the Court to partition
property by any equitable method is not affected by the
said Act." 10. A learned Single Judge of this Court, in
the year 1983, followed Badri Narain Prasad
Choudhary (supra) and answered the same issue in
paragraph 2 of the judgment in Anthony Ammal v.
Antony 1983 KLT 645 :: 1983 KLJ 354 :: 1983 ICO
979 as under: "As per Section 2 of the Partition Act,
1893, a sale of the properties involved in a partition suit
 and distribution of the sale proceeds among the sharers
can be made only on the request of a shareholder
individually interested or of shareholders collectively
interested in one moiety or upwards of the properties
involved. But, it cannot be said that the Court has no
power to direct the sale of the property involved in a
suit for partition and the distribution of the sale
proceeds among the sharers even if the above condition
insisted by Section 2 of the Partition Act is not
satisfied. What the Court has to see is that there is a just
partition. In all cases where the property, or properties,
is incapable of partition by metes and bounds, the Court
is not without powers to resort to a feasible method just
and equitable in the circumstances of the case. The
Partition Act does not take away this power the Court
has. In this case, even though the application for final
decree has been made by the 5th defendant-respondent,
who has only less than a moiety, it cannot be said that
the Court was in the wrong in accepting the report of
the Commissioner to sell the property by auction
among the sharers.”

28 In FD proceedings, measurement of property takes a

lot of time.. What steps are to be taken to reduce the
time?
Appoint a private surveyor after obtaining a panel of
Surveyor
Fix a time for survey
Give a time frame for the Surveyor to prepare the sketch
Adv Commissioner shall also be given a time frame.
If the commissioner is not filing the report- coercive steps
can be initiated - (surrendering of batta )
29After the preliminary decree, one of the sharers sold his
share in the plaint scheduled property sold to a third
party. Whether such 3rd party can be allotted a share in
the final decree?
Answer: The assignee shall apply for a supplementary
preliminary decree. The assignee cannot immediately apply
for a final decree without obtaining a supplementary
preliminary decree. 2023(2) KHC 692, 2018 (3) KHC 749,
2018(3)KHC 749, 2017 KHc 5703, 2017 KHc 124
2004 KHC 450
2. After the preliminary decree, a shareholder died.
Whether the share of such deceased shall be allotted to all
the legal representatives of the deceased jointly or further
separation among the shareholders can be done in the
same final decree proceedings.
Answer: The legal representative of the deceased sharer
must apply for a supplementary preliminary decree. Only
after obtaining a supplementary preliminary decree can a
final decree be passed.
 3. During the final decree proceedings, a temporary
injunction can be granted against shareholder?
Answer: An injunction restraining the other co-sharer
is impossible at any stage of a partition suit, even if the
other co-owner is in exclusive possession. AIR 2001 P
& H 112, 2022 (1) KLT OnLine 1209
 If one co-owner feels or apprehends
obstruction in the matter of enjoyment of his
co-ownership right, he can very well institute a
Suit restraining the other co-owner from
obstructing the enjoyment within the sphere of
co-ownership right, without disturbing the
similar right of the other co-owner/co-owners,
even without opting for partition.- J. Rajendran
Pillai v. B. Bhasi & Ors. 2022 LiveLaw (Ker) 86 -{N.B
Not pertaining to partition suit but general
application Kindly edit if needed - }
301. Preliminary decree passed in which the defendant was
ex parte and Suo motto final decree proceeding was
initiated by the court. Then whether notice need be issued
to the defendant in Final Decree proceedings?
Need not be issued notice again. AIR 2022 SC
2841[Kattukandi Edathil Krishnan vs Kattukandi
Edathil Valsan] Para 29 discourages the practice. It reads;
“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.”

2. Compromise filed by the parties stating that A will

get 8 cents B will get 10 cents A and C will get 7 cents.
Accordingly preliminary decree passed. Then in final
decree stage the petitioner/plaintiff filed a joint
statement in variance with the quantum of share stated
in the terms of compromise as the actual area of
property, on measurement found lesser. Can the same
be allowed?

No doubt, in the same suit there cannot be two final

decrees for partition with reference to the same
property. The jurisdiction of the Court to pass a
composite decree and pass more than one final decree
being there when special circumstances of the case
require it, we must look to the terms of the decree itself
to find out when the question arises, as in the present
case, as to what is the real nature of the so-called final
decree. Has there been a final adjudication of the rights
of parties dividing the properties by metes and bounds
and declaring the respective rights of the parties in
particular properties duly identified or identifiable if
execution becomes necessary. The question, we have
to ask ourselves, is whether the suit has been finally
disposed of or has something further to be done in the
suit itself to specify the rights of parties. For this,
rather than to speculate upon what the parties intended,
or the Court must have intended, we look to the terms
of the decree itself.