Shakila Shareef vs K.Shabeena Shareef

2026:MHC:954
CRP.No.1096 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON :27.02.2026
PRONOUNCED ON :09.03.2026
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CRP.No.1096 of 2026
and CMP.No.5723 of 2026
1.Shakila Shareef
2.Niyamathulla Shareef
Vs. … Petitioners
1.K.Shabeena Shareef
2.Farhan Shareef (minor)
3.Adaan Shareef (minor)
... Respondents
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to set aside the order dated 04.11.2025 in
I.A.No.14 of 2024 in O.S.No.603 of 2020 on the file of the Court of V
Additional District Judge, City Civil Judge, Chennai.
For Petitioners : M/s.R.Thenamirtha Shyamala
O R D E R
The Civil Revision Petition is filed challenging the order passed by
the trial Judge appointing Advocate Commissioner to suggest modes of
Division as per the preliminary decree for partition.
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CRP.No.1096 of 2026
2. The respondents/plaintiffs filed a suit for partition and a
preliminary decree for partition was passed declaring 1/16th share to first
th
plaintiff and 7/8 share to each of the plaintiffs 2 and 3.
3. Pursuant to the preliminary decree passed by the trial Court, the
plaintiffs filed instant application seeking appointment of Advocate
Commissioner to divide the property as per the preliminary decree. The trial
Court by the impugned order appointed an Advocate Commissioner to
suggest the mode of division as per the preliminary decree. Aggrieved by
the said order, the petitioners/defendants have come before this Court.
4. The learned counsel appearing for the petitioners would
vehemently contend that petition for appointment of Advocate
Commissioner filed by the respondents without filing a petition for passing
of final decree is untenable in law.
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CRP.No.1096 of 2026
5. The learned counsel further submits that any order passed in a
petition for appointment of Advocate Commissioner to divide the property
can only be challenged by way of revision and in the absence of final decree
by the trial Court based on the application made by the party to the
preliminary decree for partition, the right of filing appeal against the final
decree, available to the petitioners, will get deprived.
6. In the light of the submission made by the learned counsel
appearing for the petitioners, the main question to be decided in this revision
is whether petition filed by the plaintiff seeking appointment of Advocate
Commissioner to divide the property, as per the preliminary decree is
maintainable without a separate application for passing of final decree.
7. The practice of passing two decrees in the name of preliminary
decree and final decree in partition suit and the inconvenience caused by
such practice had been extensively considered by the Apex Court in Shub
Karan Bubna @ Shub Karan Prasad Bub vs Sita Saran Bubna & Ors
reported in (2009) 9 SCC 689.
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CRP.No.1096 of 2026
8. The Apex Court in the above mentioned decision, after expressing
a need for doing away the practice of passing two decrees in the partition
suit, ultimately observed as follows:
“31.   Insofar as final decree proceedings are concerned, we
see no reason for even legislative intervention. As the provisions of
the Code stand at present, initiation of final decree proceedings does
not depend upon an application for final decree for initiation (unless
the local amendments require the same). As noticed above, the Code
does not contemplate filing an application for final decree.
Therefore, when a preliminary decree is passed in a partition suit,
the proceedings should be continued by fixing dates for further
proceedings till a final decree is passed. It is the duty and function of
the court. Performance of such function does not require a reminder
or nudge from the litigant. The mindset should be to expedite the
process of dispute resolution.” (emphasis supplied by this Court)
Therefore, it is clear that partition suit is a continuous one till the
passing of final decree and no separate application by the litigant is
necessary to initiate final decree proceedings and it is the duty of the Court
to continue the proceeding till the passing of final decree.
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CRP.No.1096 of 2026
9. The above view of the Apex Court was re-affirmed in a subsequent
decision of the Apex Court in Kattukandi Edathil Krishnan and others Vs.
Kattakandi Edathil Valsan and others reported in (2022 ) 16 SCC 71 ,
wherein the Apex Court observed as follows:
“ 35. We are of the view that once a preliminary decree is
passed by the trial Court, the court should proceed with the
case for drawing up the final decree suo motu. After
passing of the preliminary decree, the trial Court has to list
the matter for taking steps under  Order XX Rule 18 of the
CPC . The courts should not adjourn the matter sine die, as
has been done in the instant case. There is also  no need to
file a separate final decree proceedings. In the same suit, the
court should allow the party concerned 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.”
10. The observation of the Apex Court in the above two decisions
would make it clear, after passing of the preliminary decree, Court has to fix
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CRP.No.1096 of 2026
a date and continue with the final decree proceedings. Therefore, there is no
need to file a separate application for passing of final decree. The only
difficulty for the Court would be drawing up a final decree. For the
purpose of drawing up final decree, the person in whose favour final decree
is passed is required to deposit required stamp papers. If the person in
whose favour final decree is passed, failed to deposit required stamp papers,
then the Court may not be in a position to engross final decree in stamp
papers. The same problem will be encountered even if a separate application
for passing of final decree is filed by one of the litigants. Even in such
cases, where separate application is filed by one of the litigants and final
decree is passed by the Court on the basis of the application, if thereafter, the
applicant has failed to supply the stamp papers, Court may not be in a
position to engross the final decree in the stamp papers. Therefore, in the
light of the law settled by the Apex Court in the above mentioned cases, it is
clear, there is no need for filing of separate application for passing of final
decree. Hence, the said objection raised by the learned counsel for the
petitioners is not appealable to this Court.
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CRP.No.1096 of 2026
11. In the case on hand, the respondents/plaintiffs filed an application
seeking appointment of Advocate Commissioner to divide the property and
allot the shares as per the preliminary decree. Of course, allotment of shares
cannot be done by the Advocate Commissioner, he can only suggest the
mode of division after conducting local inspection and it is for the Court to
allot the shares by passing final decree. In the case on hand, based on the
application filed by the petitioner seeking appointment of Advocate
Commissioner to divide the property pursuant to the preliminary decree, the
trial Court by impugned order appointed an Advocate Commissioner to
suggest the allotment of shares as per the preliminary decree.
12. I do not find any irregularity or illegality in the above said order.
After filing of report by the Advocate Commissioner, the trial Court has to
consider the suggestion given by the Advocate Commissioner, after giving
opportunities to all the parties shall pass final decree. If any final decree is
passed by the trial Court and the petitioners are aggrieved by the said final
decree, they are entitled to challenge the same by way of appeal. Therefore,
the submission made by the learned counsel for the petitioners that
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CRP.No.1096 of 2026
appointing an Advocate Commissioner without the formal application for
passing of final decree would result in depriving the right of appeal against
the final decree is also not acceptable to this Court.
13. In the light of the discussion made earlier, both the submissions
made by the learned counsel for the petitioners are rejected and the Civil
Revision Petition stands dismissed with the clarification that in the event of
passing of final decree, the petitioners or any other party aggrieved by such
final decree are entitled to exercise their right of appeal as available under
Section 96 of Code of Civil Procedure. No costs. Consequently, connected
miscellaneous petition is closed.
09.03.2026
Index : Yes
Speaking order:Yes
Neutral Citation:Yes
ub
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CRP.No.1096 of 2026
To
The V Additional District Judge,
City Civil Judge, Chennai.
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CRP.No.1096 of 2026
S.SOUNTHAR, J.
ub
ub
Pre-delivery order made in
CRP.No.1096 of 2026
09.03.2026
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