Kattukandi Edathil Krishnan vs Kattukandi Edathil Valsan on 13 June, 2022


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

Kattukandi Edathil Krishnan vs Kattukandi Edathil Valsan on 13 June, 2022

Author: S. Abdul Nazeer

Bench: A.S. Bopanna, Vikram Nath

                                                                     REPORTABLE



                                  IN THE SUPREME COURT OF INDIA
                                   CIVIL APPELLATE JURISDICTION
                               CIVIL APPEAL NO(S). 6406­6407 OF 2010


          KATTUKANDI EDATHIL KRISHNAN
          & ANR.                                                …APPELLANT(S)
                                VERSUS

          KATTUKANDI EDATHIL VALSAN & ORS.                      …RESPONDENT(S)


                                           JUDGMENT

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
Signature Not Verified

Digitally signed by
Rajni Mukhi
Date: 2022.06.13

the suit.

12:27:36 IST
Reason: Therefore, his legal representatives were brought on

record as defendants no.2 to 5. For the sake of convenience, the
1
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 in­interest 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.

2
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 co­habitation

with Chiruthakutty and that due to such co­habitation, 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.

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

3
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 pre­existing 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

4
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 appellants­plaintiffs and Mr. R. Basant & Mr. V. Giri,

learned senior counsel for the respondents­defendants.

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

5
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.

6

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 A­3. It is further argued that even

Exhibit A­3 does not prove the marriage/long co­habitation 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.

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.

7

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

8
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.”

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

1 AIR 1927 PC 185
2 AIR 1929 PC 135
3 (1978) 3 SCC 527
9
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 plaintiff­Krishnan 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

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
10
habitation to establish the relationship of husband­wife between

Damodaran and Chiruthakutty.

22. The first plaintiff was examined as PW­1 who deposed that his

father­Damodaran and mother­Chiruthakutty resided in the suit

schedule property. PW­1 further deposed that he shifted his

residence along with his mother after the demise of his father when

he obtained a job. PW­1 has also stated that the defendants gave a

share of the income till the death of his mother in the year 1985.

PW­2 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 and wife. They have a

son by the name of Krishnan. In his cross­examination, he has

stated that, as per custom, some persons had participated in their

marriage. Even before marriage, Chiruthakutty had been at

Kattukandi Edathil House. PW­2 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

11
of PW­2 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.A­9. 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.B­1 is the

copy of the similar certificate produced by the defendants. On

comparing Ex.A­9 and Ex.B­1, it is seen that some corrections have

been made in Ex.A­9 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

12
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 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

13
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.A14­Marriage 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 1     st
                                     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

14
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 3 rd 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 3 rd defendant and the
other defendant i.e., the daughter of the 3 rd 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 1 st plaintiff while he
was in military service. From 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 PW­2, would show

the long duration of cohabitation between Damodaran and

15
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 co­habitation. 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. Par­

ties 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 Or­

der XX of the Code of Civil Procedure, 1908 (for short, ‘CPC’). This

16
provision deals with decrees in suits for partition or separate pos­

session of share therein. It provides as under:

“18. Decree in suit for partition of property or sepa­
rate 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,­
(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 accor­
dance 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 prop­
erty, the Court may, if the partition or separation
cannot be conveniently made without further in­
quiry, 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 ad­
judication which, so far as regards the Court ex­
pressing 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 pre­
liminary 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
17

(b) any order of dismissal for default.

Explanation.—A decree is preliminary when fur­
ther 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 sep­

arate 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 pre­

liminary and final decree is that:­ a preliminary decree merely de­

clares the rights and shares of the parties and leaves room for some

further inquiry to be held and conducted pursuant to the directions

made in preliminary decree and after the inquiry having been con­

ducted and rights of the parties being finally determined, a final de­

cree 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
18
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 proceed­

ings, the litigants tend to take their own sweet time for initiating fi­

nal decree proceedings. In some States, the courts after passing a

preliminary decree adjourn the suit sine die with liberty to the par­

ties 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 par­

ties in one proceedings and requiring initiation of separate proceed­

ings 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), had pointed out the defects in the procedure

in this regard and suggested for appropriate amendment to the

9 (2009) 9 SCC 689
10 (2012) 3 SCC 548
19
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 judg­
ments, decrees, preliminary decrees and final decrees
and execution of decrees. They provide for a “pause” be­
tween a decree and execution. A “pause” has also devel­
oped by practice between a preliminary decree and a final
decree. The “pause” is to enable the defendant to volun­
tarily comply with the decree or declaration contained in
the preliminary decree. The ground reality is that defen­
dants normally do not comply with decrees without the
pursuance of an execution. In very few cases the defen­
dants in a 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 in­
terested 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
20
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 sepa­
rated 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 pre­
liminary 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, ade­
quate importance is not given to the final decree proceed­
ings 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 re­
lief. 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 to their ju­
niors to conduct the final decree proceedings and then
give it to their clerks for conducting the execution pro­
ceedings.

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 de­
cree is granted within a year or two, the final decree pro­
ceeding and execution takes decades for completion. This
is an area which contributes to considerable delay and
consequential loss of credibility of the civil justice sys­
tem. 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 plain­
tiff will see the fruits of the decree. The proverbial obser­
21
vation by the Privy Council is that the difficulties of a liti­
gant 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 appro­
priate recommendations/amendments so that the suit
will be a continuous process from the stage of its initia­
tion to the stage of securing actual relief.

29. The present system involving a proceeding for dec­
laration of the right, a separate proceeding for quantifica­
tion or ascertainment of relief, and another separate pro­
ceeding 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.”

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 de­

cree, 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
22
no need to file a separate final decree proceedings. In the same

suit, the court should allow the concerned party to file an appropri­

ate 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 respec­

tive States.

…………………………………J.

(S. ABDUL NAZEER)

…………………………………J.

(VIKRAM NATH)
New Delhi;

Dated:13th June, 2022.

23



Source link