Madras HC Upholds Partition Commissioner, Leaving Deceased Defendant’s Son Free To Contest Proposed Division Before Final Decree

Respondents 1 and 2 obtained a preliminary decree for partition against the other respondents and the petitioner’s father. They later sought a final decree in I.A. No. 175 of 2019 in O.S. No. 245 of 2019.

After the petitioner’s father died, the petitioner was brought on record in the final-decree proceedings and filed a counter. The Trial Court appointed an Advocate Commissioner to suggest a mode of division. The petitioner challenged that order under Article 227, arguing that the preliminary decree had been obtained by suppression of material facts and that he had not been given an opportunity to oppose the final-decree application

1. Whether the Trial Court erred in appointing an Advocate Commissioner to suggest a mode of division in the final-decree proceedings

2. Whether the petitioner’s objections to the preliminary decree or the final-decree proceedings warranted setting aside the Commissioner’s appointment

The Court stated that a grievance against a preliminary decree must be challenged in the manner known to law.

In final-decree proceedings for partition, an Advocate Commissioner may be appointed to suggest a mode of division; the Commissioner’s report is only a suggestion, and the parties may object to it. The Trial Court must decide the division and final decree after hearing the parties.

The petitioner’s allegation that the preliminary decree was vitiated did not, in the Court’s view, establish an error in the order appointing a Commissioner; any challenge to that decree had to be pursued separately in the manner known to law.

The Commissioner’s role was limited to suggesting a mode of division, which would assist the Trial Court in considering the final decree. Because the parties could object to the report and the petitioner’s existing objections would be considered at final disposal, the appointment did not deny him an opportunity to be heard.

The connected Civil Miscellaneous Petition was closed, with no order as to costs.