KATTUKANDI EDATHIL KRISHNAN & ANR. versus KATTUKANDI EDATHIL VALSAN & ORS.

[2022] 7 S.C.R.

AKATTUKANDI EDATHIL KRISHNAN & ANR.

KATTUKANDI EDATHIL VALSAN & ORS.(Civil Appeal No(s). 6406-6407 of 2010)

JUNE 13, 2022

[S. ABDUL NAZEER AND VIKRAM NATH JJ.]

Evidence Act, 1872 – s.114 – Share in coparcenary property– Partition suit filed by appellants-plaintiffs claiming half share inthe coparcenary property – Respondents-defendents challenged themarriage of the first plaintiff’s parents i.e. ‘D’ and ‘C’ and alsoCcontended that plaintiff no.1 is not the son born out of the saidwedlock – Trial Court upheld the validity of marriage of firstplaintiff’s parents and held that plaintiff no.1 is son born out ofsaid wedlock and passed preliminary decree for partition of thesuit property – Appeal filed by respondent before High Court –DHigh Court held that plaintiff no.1 is son of ‘D’ but not legitimateone and thereby denied partition of the property – Before theSupreme Court, appellants contended that as per s. 114 IEA, longcourse of living together between male and female will raise arebuttable presumption of marriage between them and the childrenborn in such relationship are considered to be legitimate children –EHeld: From the documents on record coupled with the evidence ofPW-2, would show that there was long duration of cohabitationbetween parents of plaintiff no. 1 – Though the presumption of s.114IEA is rebuttable, heavy burden lies on him who seeks to rebut thepresumption – The respondents have failed to rebut the presumptionFof marriage raised as per s. 114 IEA – Therefore the judgment ofthe trial Court is upheld – As far as issue of delay in initiating finaldecree proceedings u/Or. XX, r.18 of the CPC is concerned, thetrial Courts directed to list the matter for taking steps u/Or. XX Rule18 of the CPC soon after passing of the preliminary decree forpartition and separate possession of the property, suo motu andGwithout requiring initiation of any separate proceedings – Code ofCivil Procedure,1908 – Or. XX, r. 18.

Allowing the appeals, the Court

HELD: 1. It is well settled that if man and woman livetogether for long years as husband and wife, there would be aHpresumption in favour of wedlock. Such presumption could be

drawn under Section 114 of the Evidence Act. Although, thepresumption is rebuttable, heavy burden lies on him who seekto deprive the relationship of legal origin to prove that nomarriage took place. [Para 15][1126-E]

2. The plaintiffs have produced the birth certificate of thefirst plaintiff as Ex.A-9. As per this document, the date of birth ofthe first plaintiff is shown as 12.05.1942. K.E. ‘D’ and ‘C’ aredescribed as father and mother. [Para 23][1128-C]

3. There are also enough materials on record to show that‘C’ was getting some money from the family of ‘D’, including inparticular the letters at Exs.A22 and A23, which were addressedto the first plaintiff by his mother ‘C’ long back in the year 1976.[Para 25][1129-C-D]

4. The first plaintiff was born on 12.05.1942 as is evidentfrom Ext.A9. The documents produced by the plaintiffs were inexistence long before the controversy arose between the parties.These documents, coupled with the evidence of PW-2, wouldshow the long duration of cohabitation between ‘D’ and ‘C’ ashusband and wife. The first plaintiff joined military service in theyear 1963 and retired in the year 1979. Thereafter he has takenthe steps to file suit for partition of the suit schedule property.[Para 26][1130-B-D]

5. This Court also perused the evidence of the defendants.This Court is of the view that the defendants have failed to rebutthe presumption in favour of marriage between ‘D’ and ‘C’ onaccount of their long co-habitation. [Para 27][1130-D-E]

6. Once preliminary decree is passed by the Trial Court,the court should proceed with the case for drawing up the finaldecree suo motu. After passing of the preliminary decree, theTrial Court has to list the matter for taking steps under OrderXX Rule 18 of the CPC. The courts should not adjourn the mattersine die, as has been done in the instant case. There is also noneed to file separate final decree proceedings. In the samesuit, the court should allow the concerned party to file anappropriate application for drawing up the final decree. Needlessto state that the suit comes to an end only when final decree isdrawn. [Para 33][1135-A-C]

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ABadri Prasad v. Dy. Director of Consolidation andOthers (1978) 3 SCC 527: [1979] 1 SCR 1; S.P.S.Balasubramanyam v. Suruttayan alias Andali Padayachiand Others (1994) 1 SCC 460; Tulsa and Others v.Durghatiya and Others (2008) 4 SCC 520 : [2008] 1SCR 709; Challamma v. Tilaga and Others (2009) 9 SCCB299 : [2009] 11 SCR 831; Madan Mohan Singh andOthers v. Rajni Kant and Another (2010) 9 SCC 209 :[2010] 10 SCR 30; Indra Sarma v. V.K.V. Sarma (2013)15 SCC 755 : [2013] 14 SCR 101920 – relied on.

Shub Karan Bubna v. Sita Saran Bubna (2009) 9 SCCC689 : [2009] 14 SCR 40; Bimal Kumar and Another v.Shakuntala Debi and Others (2012) 3 SCC 548 : [2012]2 SCR 195 – referred to.

Andrahennedige Dinohamy and Anr. v. WijetungeLiyanapatabendige Balahamy and Ors. AIR 1927 PCD185; Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR1929 PC 135 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.6406-6407 of 2010.GFrom the Judgment and Order dated 05.02.2009 of the High Courtof Kerala at Ernakulam in A.S. Nos.102 and 107 of 1996.

V. Chitambaresh, K. Rajeev, Advs. for the Appellants.

R. Basant, V. Giri, Sr. Advs., Raghenth Basant, K. B. ShivaramaKrishnan, Ms. Liz Mathew, Amith Krishnan, Akshay Sahay, Ms. RoopaliHLakhotia, Advs. for the Respondents.

The Judgment of the Court was delivered by:

S. ABDUL NAZEER, J.

1. The instant appeals arise out of the judgment and decree dated05.02.2009 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 Courthas allowed the appeals and set aside the decree for partition passed bythe Trial Court.

2. The appellants were the plaintiffs and Kattukandi IdathilKarunakaran was the defendant who died during the pendency of thesuit. Therefore, his legal representatives were brought on record asdefendants no.2 to 5. For the sake of convenience, the parties are referredby their respective ranking before the Trial Court.

3. In the suit, the plaintiffs contended that the suit property belongedto one Kattukandi Edathil Kanaran Vaidyar who had four sons viz.Damodaran, Achuthan, Sekharan and Narayanan. The first plaintiff isthe son of Damodaran, born in the wedlock with one Chiruthakutty, andthe second plaintiff is the son of the first plaintiff. Achuthan had one sonby name Karunakaran, the predecessor in-interest of the defendants.Sekharan was bachelor and died without any issue. Narayanan marriedone Lakshmi and they had daughter by the name of Janaki, who alsodied as spinster. The plaintiffs claimed half share in the suit scheduleproperty.

4. It is the case of the defendants that all the children exceptAchuthan died as bachelors and Karunakaran is the only son of Achuthan.They denied the contention of the plaintiffs that Damodaran had marriedChiruthakutty and that the first plaintiff was the son born to them in thesaid wedlock. Their further contention was that Chiruthakutty was notthe wife of Damodaran. Thus, it was pleaded that the plaintiffs are notentitled for any share in the suit schedule property.

5. On the basis of the pleadings of the parties, the Trial Courtframed relevant issues. The Trial Court on examination of the evidenceon record held that Damodaran had long co-habitation withChiruthakutty and that due to such co-habitation, it could be concludedthat Damodaran had married Chiruthakutty and that the first plaintiffwas the son born in the said wedlock. The Trial Court accordingly passeda preliminary decree for partition of the suit property into two sharesand one such share was allotted to the plaintiffs.

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A6. Aggrieved by the said judgment and decree, the first defendantfiled an appeal, A.S. No.102 of 1996, and the other defendants filedanother appeal A.S.No.107 of 1996 before the High Court. While thematter was being argued, yet another contention was put forward by thedefendants that if the first plaintiff was born to Damodaran throughChiruthakutty, he could only be an illegitimate child. As long as theBmarriage between Damodaran and Chiruthakutty is not proved, theplaintiffs cannot claim the right over the coparcenary property. This pleaof the defendants was without any pleading to that effect and no suchcontention was put forth by the defendants before the Trial Court.

C7. The High Court, on appreciation of the evidence on record,held that the first plaintiff was the son of Damodaran. However, thedocuments produced before the Court would not go to show thatDamodaran actually married Chiruthakutty and that no presumption of apre-existing valid marriage between Damodaran and Chiruthakutty couldarise. The High Court opined that the position of the first plaintiff to beDof an illegitimate child. That being so, the plaintiffs would not be entitledfor share in the coparcenary property since the marriage betweenDamodaran and Chiruthakutty was not valid one. On the basis of thisconclusion, the High Court remitted the matter back to the Trial Courtfor fresh consideration. The Trial Court permitted the parties to adduceEadditional evidence and, if necessary, to amend the pleadings so as toconsider the factum of marriage.

8. The plaintiffs challenged the above order of remand before thisCourt and this Court allowed the appeals by setting aside the order ofremand with direction to the High Court to decide the appeals on thebasis of the evidence on record.F

9. The High Court, thereafter, heard the appeals and allowed thesame by holding that there is no evidence to establish the long co-habitationbetween the father and the mother of the first plaintiff and the documentsonly proved that the first plaintiff is the son of Damodaran, but not aGlegitimate 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 counselfor the appellants-plaintiffs and Mr. R. Basant & Mr. V. Giri, learnedsenior counsel for the respondents-defendants.

11. Mr. V. Chitambaresh submits that the voluminous documentsproduced by the plaintiffs would show that Damodaran was the fatherof the first plaintiff and Chiruthakutty was the wife of Damodaran. Sincetheir marriage took place more than 50 years prior to filing of the suit(now 90 years), there is no possibility of having any documentary evidenceof their marriage. He has taken us through the various documentsproduced by the plaintiffs wherein there are references to periodicalpayments made to Chiruthakutty from the husband’s house. He has alsotaken us through the evidence of plaintiffs and, the witnesses examinedon behalf of the plaintiffs in support of his contention. It is further arguedthat the documents produced by the plaintiffs were in existence longbefore any controversies between the parties arose. These documentswould conclusively show that the first plaintiff was the son of Damodaranand Chiruthakutty and the contention of the defendants that Damodarandied as bachelor or without any legitimate son, cannot be believed atall. It is further submitted that the law is in favour of declaring legitimacy,as against bastardy. Long course of living together between male andfemale will raise presumption of marriage between them and the childrenborn in such relationship are considered to be legitimate children. It isfurther argued that while such presumption, made under Section 114 ofthe Indian Evidence Act, 1872, is rebuttable one, as rightly held by theTrial Court that the defendants have not produced any worthwhileevidence to rebut this presumption in the present case.

12. On the other hand, Mr. R. Basant and Mr. V. Giri, learnedsenior counsel for the defendants, would submit that Damodaran hadnot married Chiruthakutty and that the first plaintiff was not the legitimateson of Damodaran. The suit was deliberately filed at belated stagewhen production of conclusive evidence as to this issue was no longer apossibility. No claim for partition whatsoever was made during the lifetimeof Chiruthakutty. It is argued that there is no proof whatsoever either ofthe marriage or of the long co-habitation and that all the documentsrelied upon by the plaintiffs are documents that came into existenceafter the death of Damodaran except Exhibit A-3. It is further arguedthat even Exhibit A-3 does not prove the marriage/long co-habitationbetween Damodaran and Chiruthakutty. It is also contended that theplaintiffs have not come to the court with clean hands. Therefore, thecourt should not show any indulgence in their favour. Accordingly, thedefendants have prayed dismissal of the appeals.

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A13. We have carefully considered the submissions made at theBar by learned senior counsel for the parties and perused the materialsplaced on record.

14. It is not disputed that the suit property belongs to one KattukandiEdathil family which is Thiyya family of Calicut governed by theBMitakshara Law of Inheritance. The said property originally belonged toone Kattukandi Edathil Kanaran Vaidyar who had four sons, namely,Damodaran, Achuthan, Sekharan and Narayanan. It is also admittedthat Achuthan married Kalyani and they had son named Karunakaran(Defendant No.1). Karunakaran married Umadevi (Defendant No.3)and they had three children, namely, Valsan, Kasturi and Saraswati BaiC(Defendant Nos.2, 4 and 5 respectively). Sekharan and Narayanan didnot marry. The plaintiffs have contended that Damodaran married oneChiruthakutty and they had son by the name of Krishnan (PlaintiffNo.1). However, the defendants have contended that Damodaran nevermarried Chiruthakutty. The court below has recorded finding of fact

Dthat the first plaintiff was the son of Damodaran and Chiruthakutty, butnot legitimate son.

15. It is well settled that if man and woman live together forlong years as husband and wife, there would be presumption in favourof wedlock. Such presumption could be drawn under Section 114 ofthe Evidence Act. Although, the presumption is rebuttable, heavy burdenElies on him who seek to deprive the relationship of legal origin to provethat no marriage took place.

16. In Andrahennedige Dinohamy and Anr. v. WijetungeLiyanapatabendige Balahamy and Ors.[1], the Privy Council laid downthe general proposition as under:F“…where man and woman are proved to have lived together asman and wife, the law will presume, unless the contrary be clearlyproved, that they were living together in consequence of validmarriage and not in state of concubinage.”

17. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan[2], onceGagain it was laid down by the Privy Council as under:

“The law presumes in favour of marriage and against concubinage,when man and woman have cohabited continuously for anumber of years.”

1 AIR 1927 PC 185H2 AIR 1929 PC 135

18. In Badri Prasad v. Dy. Director of Consolidation andOthers[3], it was held by this Court that strong presumption arises infavour of wedlock where two partners have lived together for long spellas husband and wife. Although the presumption is rebuttable, heavyburden lies on him who seek to deprive the relationship of legal origin.Law leans in favour of legitimacy and frowns upon the bastardy.

19. In S.P.S. Balasubramanyam v. Suruttayan alias AndaliPadayachi and Others[4], this Court held as under:

“4. What has been settled by this Court is that if man and womanlive together for long years as husband and wife then presumptionarises in law of legality of marriage existing between the two. Butthe 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 Othersv. Durghatiya and Others[5]; Challamma v. Tilaga and Others[6];Madan Mohan Singh and Others v. Rajni Kant and Another[7 ]andIndra Sarma v. V.K.V. Sarma[8]

21. According to the plaintiffs, Damodaran had marriedChiruthakutty in the year 1940. However, there is no direct evidence oftheir marriage. The first plaintiff-Krishnan was born in the year 1942.Therefore, the question for consideration in these appeals is whetherthere is sufficient evidence to prove the long co-habitation to establishthe relationship of husband-wife between Damodaran and Chiruthakutty.

22. The first plaintiff was examined as PW-1 who deposed thathis father-Damodaran and mother-Chiruthakutty resided in the suitschedule property. PW-1 further deposed that he shifted his residencealong with his mother after the demise of his father when he obtained ajob. PW-1 has also stated that the defendants gave share of the incometill the death of his mother in the year 1985. PW-2 is neighbour. In hisevidence he has stated that Kattukandi Edathil Damodaran had marriedChiruthakutty. They had resided at Kattukandi Edathil House as husband

3 (1978) 3 SCC 527

4 (1994) 1 SCC 460

5 (2008) 4 SCC 520

6 (2009) 9 SCC 299

7 (2010) 9 SCC 209

8 (2013) 15 SCC 755

Aand wife. They have son by the name of Krishnan. In his cross-examination, he has stated that, as per custom, some persons hadparticipated in their marriage. Even before marriage, Chiruthakutty hadbeen at Kattukandi Edathil House. PW-2 has also stated thatChiruthakutty had rented room at Chalapurram and after marriage,they had stayed in rented house and that Damodarana’s sister alsoBparticipated in the marriage. The evidence of PW-2 also shows that themarriage between Damodaran and Chiruthakutty was love marriage.23. The plaintiffs have produced the birth certificate of the firstplaintiff as Ex.A-9. As per this document, the date of birth of the firstplaintiff is shown as 12.05.1942. K.E. Damodaran and ChiruthakuttyCare described as father and mother. Ex.B-1 is the copy of the similarcertificate produced by the defendants. On comparing Ex.A-9 and Ex.B-1, it is seen that some corrections have been made in Ex.A-9 with regardto 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 andDthe same i.e. K.E. Damodaran and Chiruthakutty respectively. Ex.A2 isthe Insurance Policy which shows name of his house as KattukandyEdathil. Ex. A2 dated 26.04.1966. Ex.A3 is the Secondary School LeavingCertificate of K.E. Damodaran kept in his possession. According to himhe got the same since he is the son of Damodaran. Ex. A4, dated01.08.1963, is Trade certificate issued in favour of the first plaintiffEwhich was issued by the Secretary of State Council for training invocational Trades, since he was student of the Junior Technical School,Manjeri. In this certificate the name of the first plaintiff is shown asKrishnan K. S/o Sri. K.E. Damodaran. The name of the house is shownas Edathil house, Chalappuram.F

24. The plaintiffs have produced Ex.A5, the Malayala ManoramaDaily 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 voters list of the year 1970. In this document,Gthe 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 beforethe village officer, Panniyankara. In this document the first plaintiff iscertified as the son of Damodaran by the village officer. The same isdated 24.03.1980. Ex.A8 is also similar certificate describing the firstplaintiff as the son of Damodaran by the village officer. This is datedH

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 isthe Electoral card of the first plaintiff in which the first plaintiff is describedas the son of Damodaran and Chiruthakutty is described as the wife ofDamodaran. Plaintiffs have also produced several other documents suchas electoral card (Ex.A12) dated 02.11.1983, Ex.A13, communitycertificate dated 07.11.1980, Ex.A14-Marriage certificate dated29.04.1971, Ex.A15, the receipt issued by the Life Insurance Corporationof India in favour of the plaintiffs etc. Ex.A20 is an important documentwhich is Discharge Certificate of the first plaintiff from the MilitaryService wherein he is described as the son of K.E. Damodaran. Ex.A21is the S.S.L.C. book of the first plaintiff.

25. There is also enough materials on record to show thatChiruthakutty was getting some money from the family of Damodaran,including in particular the letters at Exs.A22 and A23, which wereaddressed to the first plaintiff by his mother-Chiruthakutty long back inthe year 1976. The Trial Court has discussed this aspect of the matter asunder:

“…..There is sufficient evidence to prove that K.E. Damodaran,Kattukandy Edathil had married Chiruthakutty and the 1[st] plaintiffis the son of Damodaran. It is the pertinent to note that the definitecase of the plaintiffs is that the family used to give income fromthe family property to Chiruthakutty till her death in the year 1985.The plaintiff has produced Exts. A22 and A23 letters, addressedto the 1[st] defendant. On going through Ext. A22 it is seen that thesame has been addressed to the 1[st] plaintiff by his motherChiruthakutty long back in the year 1976. Of course the date isnot mentioned in the letter but from the seal affixed in the documentit is seen that the same has been posted in the year 1976. In thisletter it is seen recorded that the mother went to Edathil Houseand also the 3[rd] defendant is mentioned as Umadathi. It is alsoseen from the letter that she is getting some money from thefamily. In Ext. A23 also it is seen that she is getting money fromthe family and there is reference to the 3[rd] defendant and theother defendant i.e., the daughter of the 3[rd] defendant i.e. DW1has admitted that she is called as Umadathi. So Exts. A22 andA23 supports the case of the plaintiffs. The letters are seenaddressed to the 1[st] plaintiff while he was in military service. From

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Athe letters it is seen that the mother has written the same whenthe 2[nd] child was born to him and there is also enquiries withregard to the illness of the 1[st] plaintiff. On going through theseletters it can be seen that the documents are genuine. I find itdifficult to conclude the same has been created by the plaintiffs tosupport their case as contended by the defendants.”

26. As noticed above, the contention of the plaintiffs is that themarriage of Damodaran and Chiruthakutty was performed in the year1940. 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 beforethe controversy arose between the parties. These documents, coupledCwith the evidence of PW-2, would show the long duration of cohabitationbetween Damodaran and Chiruthakutty as husband and wife. The firstplaintiff joined military service in the year 1963 and retired in the year1979. Thereafter he has taken the steps to file suit for partition of thesuit schedule property.D

27. We have also perused the evidence of the defendants. Weare of the view that the defendants have failed to rebut the presumptionin favour of marriage between Damodaran and Chiruthakutty onaccount of their long co-habitation. In the circumstances, the High Courtwas 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 thejudgment and decree passed by the Trial Court is restored. Parties aredirected to bear their respective costs.

Re.: Delay in initiating final decree proceedings underFOrder XX Rule 18 of the Code of Civil Procedure, 1908

29. Before parting, we deem it necessary to address concerningtrend of delay in drawing up the final decrees under Rule 18 of OrderXX of the Code of Civil Procedure, 1908 (for short, ‘CPC’). This provisiondeals with decrees in suits for partition or separate possession of shareGtherein. It provides as under:

“18. Decree in suit for partition of property or separate possessionof share therein.- Where the Court passes decree for thepartition of property or for the separate possession of sharetherein, then,-

(1) if and in so far as the decree relates to an estate assessedto the payment of revenue to the Government, the decree shalldeclare the rights of the several parties interested in the property,but shall direct such partition or separation to be made by theCollector, or any gazetted subordinate of the Collector deputed byhim in this behalf, in accordance with such declaration and withthe provisions of section 54;

(2) if and in so far as such decree relates to any otherimmovable property or to movable property, the Court may, if thepartition or separation cannot be conveniently made without furtherinquiry, pass preliminary decree declaring the right of the severalparties, interested in the property and giving such further directionsas may be required.”

Sub section (2) of Section 2 defines the decree as under:

“(2) “decree” means the formal expression of an adjudicationwhich, so far as regards the Court expressing it, conclusivelydetermines the rights of the parties with regard to all or any ofthe matters in controversy in the suit and may be eitherpreliminary or final. It shall be deemed to include the rejectionof plaint and the determination of any question within section144, but shall not include—

(a) any adjudication from which an appeal lies as anappeal from an order, or

(b) any order of dismissal for default.

Explanation.—A decree is preliminary when further proceedingshave to be taken before the suit can be completely disposed of. Itis final when such adjudication completely disposes of the suit. Itmay be partly preliminary and partly final;”

30. It is clear from the above that preliminary decree declaresthe rights or shares of the parties to the partition. Once the shares havebeen declared and further inquiry still remains to be done for actuallypartitioning the property and placing the parties in separate possessionof the divided property, then such inquiry shall be held and pursuant tothe result of further inquiry, final decree shall be passed. Thus,fundamentally, the distinction between preliminary and final decree isthat:- preliminary decree merely declares the rights and shares of the

Aparties and leaves room for some further inquiry to be held and conductedpursuant to the directions made in preliminary decree and after the inquiryhaving been conducted and rights of the parties being finally determined,a final decree incorporating such determination needs to be drawn up.

31. Final decree proceedings can be initiated at any point of time.BThere is no limitation for initiating final decree proceedings. Either of theparties to the suit can move an application for preparation of finaldecree and, any of the defendants can also move application for thepurpose. By mere passing of preliminary decree the suit is not disposedof. [See : Shub Karan Bubna v. Sita Saran Bubna[9]; Bimal Kumarand Another v. Shakuntala Debi and Others[10]]C

32. Since there is no limitation for initiating final decree proceedings,the litigants tend to take their own sweet time for initiating final decreeproceedings. In some States, the courts after passing preliminary decreeadjourn the suit sine die with liberty to the parties for applying for finaldecree proceedings like the present case. In some other States, freshDfinal decree proceedings have to be initiated under Order XX Rule 18.However, this practice is to be discouraged as there is no point in declaringthe rights of the parties in one proceedings and requiring initiation ofseparate proceedings for quantification and ascertainment of the relief.This will only delay the realization of the fruits of the decree. This Court,Ein Shub Karan Bubna (supra), hadpointed out the defects in theprocedure in this regard and suggested for appropriate amendment tothe CPC. The discussion of this Court is in paragraphs 23 to 29 whichare as under:

“A suggestion for debate and legislative actionF23.

23. The century old civil procedure contemplates judgments,decrees, preliminary decrees and final decrees and execution ofdecrees. They provide for “pause” between decree andexecution. “pause” has also developed by practice between apreliminary decree and final decree. The “pause” is to enableGthe defendant to voluntarily comply with the decree or declarationcontained in the preliminary decree. The ground reality is thatdefendants normally do not comply with decrees without thepursuance of an execution. In very few cases the defendants in

9 (2009) 9 SCC 689H10 (2012) 3 SCC 548

partition suit voluntarily divide the property on the passing of apreliminary decree. In very few cases, defendants in money suitspay the decretal amount as per the decrees. Consequently, it isnecessary to go to the second stage, that is, levy of execution, orapplications for final decree followed by levy of execution in almostall cases.

24. litigant coming to court seeking relief is not interestedin receiving paper decree when he succeeds in establishing hiscase. What he wants is relief. If it is suit for money, he wantsthe money. If it is suit for property, he wants the property. Henaturally wonders why when he files suit for recovery of money,he should first engage lawyer and obtain decree and thenagain engage lawyer and execute the decree. Similarly, whenhe files suit for partition, he wonders why he has to first securea preliminary decree, then file an application and obtain finaldecree and then file an execution to get the actual relief. Thecommonsensical query is: why not continuous process? Thelitigant is perplexed as to why when money decree is passed,the court does not fix the date for payment and if it is not paid,proceed with the execution; when preliminary decree is passedin partition suit, why the court does not forthwith fix date forappointment of Commissioner for division and make final decreeand deliver actual possession of his separated share. Why is itnecessary for him to remind the court and approach the court atdifferent stages?25. Because of the artificial division of suits into preliminarydecree proceedings, final decree proceedings and executionproceedings, many trial Judges tend to believe that adjudication ofthe right being the judicial function, they should concentrate onthat part. Consequently, adequate importance is not given to thefinal decree proceedings and execution proceedings which areconsidered to be ministerial functions. The focus is on disposingof cases rather than ensuring that the litigant gets the relief. Butthe focus should not only be on early disposal of cases, but alsoon early and easy securement of relief for which the partyapproaches the court. Even among lawyers, importance is givenonly to securing of decree, not securing of relief. Many lawyershandle suits only till preliminary decree is made, then hand it over

to their juniors to conduct the final decree proceedings and thengive it to their clerks for conducting the execution proceedings.

26. Many time, party exhausts his finances and energyby the time he secures the preliminary decree and has neither thecapacity nor the energy to pursue the matter to get the final relief.As consequence, we have found cases where suit is decreedor preliminary decree is granted within year or two, the finaldecree proceeding and execution takes decades for completion.This is an area which contributes to considerable delay andconsequential loss of credibility of the civil justice system. Courtsand lawyers should give as much importance to final decreeproceedings and executions, as they give to the main suits.

27. In the present system, when preliminary decree forpartition is passed, there is no guarantee that the plaintiff will seethe fruits of the decree. The proverbial observation by the PrivyCouncil is that the difficulties of litigant begin when he obtains adecree. It is necessary to remember that success in suit meansnothing to party unless he gets the relief. Therefore, to be reallymeaningful and efficient, the scheme of the Code should enable aparty not only to get decree quickly, but also to get the reliefquickly. This requires conceptual change regarding civil litigation,so that the emphasis is not only on disposal of suits, but also onsecuring relief to the litigant.

28. We hope that the Law Commission and Parliament willbestow their attention on this issue and make appropriaterecommendations/amendments so that the suit will be continuousprocess from the stage of its initiation to the stage of securingactual relief.

29. The present system involving proceeding fordeclaration of the right, separate proceeding for quantificationor ascertainment of relief, and another separate proceeding forenforcement of the decree to secure the relief, is outmoded andunsuited for present requirements. If there is practice of assigningseparate numbers for final decree proceedings, that should beavoided. Issuing fresh notices to the defendants at each stageshould also be avoided. The Code of Civil Procedure should providefor continuous and seamless process from the stage of filing ofsuit to the stage of getting relief.”33. We are of the view that once preliminary decree is passedby the Trial Court, the court should proceed with the case for drawingup the final decree suo motu. After passing of the preliminary decree,the Trial Court has to list the matter for taking steps under Order XXRule 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 aseparate final decree proceedings. In the same suit, the court shouldallow the concerned party to file an appropriate application for drawingup the final decree. Needless to state that the suit comes to an end onlywhen final decree is drawn. Therefore, we direct the Trial Courts tolist the matter for taking steps under Order XX Rule 18 of the CPC soonafter passing of the preliminary decree for partition and separatepossession of the property, suo motu and without requiring initiation ofany separate proceedings.

34. We direct the Registry of this Court to forward copy of thisjudgment to the Registrar Generals of all the High Courts who in turnare directed to circulate the directions contained in paragraph ‘33’ ofthis judgment to the concerned Trial Courts in their respective States.

Ankit Gyan

Appeals allowed.

(Assisted by : Aarsh Choudhary, LCRA)