Full Judgment Text
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)
J U D G M E N T
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
12:27:36 IST
Reason:
the suit. 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
1
Liyanapatabendige Balahamy and Ors. , 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.”
2
17. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan , 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
3
Others , 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
4
Padayachi and Others , 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
5
Others v. Durghatiya and Others ; Challamma v. Tilaga and
6
Others ; Madan Mohan Singh and Others v. Rajni Kant and
7 8
Another and Indra Sarma v. V.K.V. Sarma
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
st
Chiruthakutty and the 1 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.
st
A22 and A23 letters, addressed to the 1 defendant. On
14
going through Ext. A22 it is seen that the same has been
st
addressed to the 1 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
rd
mother went to Edathil House and also the 3 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
rd
family and there is reference to the 3 defendant and the
rd
other defendant i.e., the daughter of the 3 defendant i.e.
DW1 has admitted that she is called as Umadathi. So
Exts. A22 and A23 supports the case of the plaintiffs.
st
The letters are seen addressed to the 1 plaintiff while he
was in military service. From the letters it is seen that the
nd
mother has written the same when the 2 child was born
to him and there is also enquiries with regard to the
st
illness of the 1 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
9
not disposed of.
[See : Shub Karan Bubna v. Sita Saran Bubna ;
10
Bimal Kumar and Another v. Shakuntala Debi and Others ]
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 with liberty to the par
sine die
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;
th
Dated:13 June, 2022.
23