Karnataka HC Orders Trial Court To Add Properties It Had Found Ancestral To Preliminary Partition Decree

The petitioners, legal representatives of defendant Nos. 4, 7 and 11 in O.S. No. 219/2012, challenged the trial court’s rejection of their application under Section 151 of the Code of Civil Procedure, 1908 (CPC).

In its judgment, the trial court had directed the plaintiff or those defendants to furnish the extent and boundaries of additional ancestral and joint-family properties before drawing the preliminary decree. The petitioners sought inclusion of those properties, but the trial court rejected their application because it was not filed within the stipulated time.

They contended that a stay in proceedings relating to the suit had prevented them from effectively seeking inclusion before the preliminary decree was drawn.

The Court considered Section 151 CPC, under which the trial court’s inherent powers were invoked, and Article 227 of the Constitution, under which the petitioners sought supervisory relief.

It applied the principles that a coparcener’s right in ancestral property is a pre-existing right acquired by birth, and that a partition suit declares and quantifies existing rights rather than creating them.

It further held that a preliminary decree must conform to the findings and conclusions in the judgment, and that a suit for partition should ordinarily include all joint-family properties available for partition; partial partition is not ordinarily sustainable where all such properties can be brought before the court.

The trial court had accepted that the properties identified in the written statement were ancestral and joint-family properties, and had expressly directed that their extent and boundaries be supplied before the preliminary decree was drawn.

The Court held that the direction was intended to give effect to the trial court’s findings, not to create a separate right dependent on compliance within a strict timeframe. Accordingly, the petitioners’ delay could not extinguish their substantive rights or justify a decree inconsistent with those findings.

Because the decree omitted properties that the judgment had directed should be included, it failed to conform to the judgment and could not be sustained.

It directed the trial court to have the properties referred to in the written statement included and to draw and issue a fresh amended preliminary decree consistent with the findings in its judgment, within two months of receiving a copy of the High Court’s order.

Pendente lite purchasers were left at liberty to pursue their remedies in the final decree proceedings in accordance with law.