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metes and bounds

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Legal representatives-Creditor instituting suit for recovery of debt against only heirs known to him after bona-fide inquiry-Whether such heirs represent entire estate and decree in suit binds heirs not impleaded Personal law of deceased-Whether relevant. -M, K and L mortgaged certain immovable properties in favour of R in 1933. M died in 1937 and in 1940, R commenced an action for enforcement of the mortgage against K, L and three widows and a daughter of M. In execution of the decree passed in the action, the properties were bold at a court auction in 1942 and purchased by R, who thereafter trans- ferred them to others. The appellant-plaintiff, claiming that he was the son of M, instituted a suit in 1950 for a decree for partition of the mortgaged properties “by metes and bounds” and in the alternative for a declaration that he was entitled to redeem the mortgage or a portion thereof equal to his share in the mortgaged properties. The plaintiff’s suit was resisted by R and the other alienees of the properties, mainly on the ground that the decree of 1940 was binding on the appellant for the estate of M was fully represented in the suit by those who were in possession at the time; and that R had made full and boan- fide inquiry and had learnt that the three widows and the daughter of M were the only surviving members of the latter’s family. The trial court dismissed the appellants’s suit and this decision was confirmed in appeal by the High Court. In appeal to this Court, the only contention pressed on behalf of the appellant was ‘,hat when in a suit to enforce a mortgage instituted after the death of a muslim debtor, one or more out of the heirs of the deceased is or are not impleaded in the suit and a decree is obtained, what passes to the auction-purchaser at the court sale is only the interest of the heirs who were impleaded; that this was so because each heir is under Mohamedan law liable to satisfy the debts of the deceased only to the extent of ‘the share of the debt proportionate to his share in the estate. HELD : (i) The appellant was sufficiently represented in the suit filed in 1940 and was bound by the decree passed in that suit, (ii) Whether a decree obtained by a creditor against the heirs of a deceased muslim is binding upon the entire estate or only on those who were impleaded eo nomine is not a question to be determined on the personal law either of the deceased or of the defendant in the suit. It is a part of the law of procedure which regulates all matters going to the remedy, and when the matter passes into the domain of procedure, it must be regulated by the law governing the action of the court; [944 D] 938 (iii) Where certain persons are impleaded after diligent and bona fide enquiry in the genuine belief ‘,hat they are the only persons interested in the estate, the whole estate of the deceased will be duly represented by the persons who are brought on the record or impleaded, and the decree will be binding on the entire estate. [948 G] Daya Rain and others v. Shyam Sundari & others [1965] 1 S.C.R. 231. followed. If the creditor has proceeded after such bona fide enquiry, it would make no difference in principle between a case in which a debtor is sued for recovery of a debt and upon his death pendente lite there is an order of the court recognising the persons brought on the record as representing the estate, and a case in which in a suit against the heirs of a deceased debtor, -the creditor has taken upon himself the responsibility to bring certain persons on the record as representing the estate. [948 E] This rule will not apply to cases where there has been fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate that there has not been a fair or real trial, or that the absent heir had a special defence which was not and could not be tried in the earlier proceeding. [948 H] Case law reviewed. -1966 AIR 792, 1966( 1 )SCR 937, , ,

PETITIONER: N.K. MOHAMMAD SULAIMAN Vs. RESPONDENT: N. C. MOHAMMAD ISMAIL AND OTHERS DATE OF JUDGMENT: 23/09/1965 BENCH: SHAH, J.C. BENCH: SHAH, J.C. SUBBARAO, K. WANCHOO, K.N. SIKRI, S.M. RAMASWAMI, V. CITATION: 1966 AIR 792 1966 SCR (1) 937 CITATOR INFO : R 1967 SC 49 (3) RF 1975 SC 733 (33) RF 1979 SC1393 (29) … Continue reading

partition suit – final decree suit =Where an application does not invoke the jurisdiction of court to grant any fresh relief based on a new cause of action, but merely reminds or requests the court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation – Such an application is not one to which Limitation Act would apply – As declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit – Suit continues to be pending until partition, that is, division by metes and bounds, takes place by passing a final decree – An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree is neither an application for execution (falling under Article 136 of Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act) – Code does not contemplate filing of 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 which in the normal course has to be performed by the court itself as a continuation of the preliminary decree – 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 – The application filed by plaintiff for drawing up of a final decree was rightly held to be not subject to any period of limitation – Court concerned would expedite the final decree proceedings – Limitation. Lalta Prasad v. Brahma Din AIR 1929 Oudh 456; Ramabai Govind v. Anant Daji AIR 1945 Bom. 338; Abdul Kareem Sab v. Gowlivada S. Silar Saheb AIR 1957 AP 40; A. Manjundappa v. Sonnappa & Ors. AIR 1965 Kar. 73; Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors. AIR 1983 Orissa 121; Laxmi v. A.Sankappa Alwa AIR 1989 Ker. 289; Phoolchand vs. Gopal Lal AIR 1967 SC 1470; Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors. 2007 (2) SCC 355; and Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare 2008 (8) SCC 198, relied on HELD: There is a fundamental difference between mortgage suits and partition suits – In a preliminary decree in a mortgage suit (whether a decree for foreclosure under r.2 or a decree for sale under r.4 of O 34 CPC), the amount due is determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non- payment within the time stipulated is also specified – A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non-payment of the amount – When the amount is not paid, plaintiff gets a right to seek a final decree for foreclosure or for sale – On the other hand, in a partition suit the preliminary decree only decides a part of the suit and, therefore, an application for passing a final decree is only an application in a pending suit, seeking further progress – In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court – In fact several applications for final decree are permissible in a partition suit – The application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds – Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit – Consequently, an application for a final decree in a mortgage suit is different from an application for final decree in a partition suit. HELD: `Partition’ is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees – The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty – A partition of a property can be only among those having a share or interest in it – A person who does not have a share in such property cannot obviously be a party to partition – `Separation of share’ is a species of `partition’ – When all co-owners get separated, it is a partition – Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds – In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff’s share in the suit properties, but also division of his share by metes and bounds – This involves three issues (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner the property/properties should be divided by metes and bounds. HELD: Cases have been found where a suit is decreed or a preliminary decree is granted within a year or two and the final decree proceeding and execution takes decades for completion – This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system – Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits – A conceptual change regarding civil litigation, is required so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant – It is hoped that the Law Commission and Parliament will bestow their attention on this issue and make appropriate recommendations/amendments so that the suit will be a continuous process from the stage of its initiation to the stage of securing actual relief – The present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements – 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 – In so far final decree proceedings are concerned, there is no reason for even legislative intervention – As the provisions of the Code stand as on date, initiation of final decree proceedings does not depend upon an application for final decree for initiation (unless the local amendments require the same) – Practice and Procedure. Case Law Reference: AIR 1929 Oudh 456 relied on para 8 AIR 1945 Bom. 338 relied on para 8 AIR 1957 AP 40 relied on para 8 AIR 1965 Kar. 73 relied on para 8 AIR 1983 Orissa 121 relied on para 8 AIR 1989 Ker. 289 relied on para 8 AIR 1967 SC 1470 relied on para 8 2007 (2) SCC 355 relied on para 8 2008 (8) SCC 198 relied on para 8 CIVIL APPELLATE JURISDICTION : SLP (Civil) No. 17932/2009. From the Judgment and Order dated 15.1.2009 of the High Court of Judicature at Patna in C.R. No. 2216/2008. S.B. Sanyal and Subhro Sanyal for the Petitioner. Act: Code of Civil Procedure, 1908: ss.2(20) and 54, O. 20 r.18, O. 26 r.13 – Partition suit – Preliminary decree passed – Application for final decree – Resisted on the ground of limitation – DECREE – Preliminary decree and final decree – Concept of, in the context of partition suits and mortgage suits – SUIT: Suit for partition – Partition – Concept of – LEGISLATION: Suit – Filing of suit and securing relief to litigant – Proceedings in between – Need for legislation to avoid multiplicity of proceedings –

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION [C] NO.17932 OF 2009 Shub Karan Bubna @ Shub Karan Prasad Bubna … Petitioner Vs. Sita Saran Bubna & Ors. … Respondents O R D E R R. V. RAVEENDRAN, J. The first respondent and his mother filed a suit for partition against … Continue reading

Code of Civil Procedure, 1908: ss.2(20) and 54, O. 20 r.18, O. 26 r.13 – Partition suit – Preliminary decree passed – Application for final decree – Resisted on the ground of limitation – DECREE – Preliminary decree and final decree – Concept of, in the context of partition suits and mortgage suits – SUIT: Suit for partition – Partition – Concept of – LEGISLATION: Suit – Filing of suit and securing relief to litigant – Proceedings in between – Need for legislation to avoid multiplicity of proceedings – =HELD: Where an application does not invoke the jurisdiction of court to grant any fresh relief based on a new cause of action, but merely reminds or requests the court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation – Such an application is not one to which Limitation Act would apply – As declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit – Suit continues to be pending until partition, that is, division by metes and bounds, takes place by passing a final decree – An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree is neither an application for execution (falling under Article 136 of Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act) – Code does not contemplate filing of 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 which in the normal course has to be performed by the court itself as a continuation of the preliminary decree – 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 – The application filed by plaintiff for drawing up of a final decree was rightly held to be not subject to any period of limitation – Court concerned would expedite the final decree proceedings – Limitation. Lalta Prasad v. Brahma Din AIR 1929 Oudh 456; Ramabai Govind v. Anant Daji AIR 1945 Bom. 338; Abdul Kareem Sab v. Gowlivada S. Silar Saheb AIR 1957 AP 40; A. Manjundappa v. Sonnappa & Ors. AIR 1965 Kar. 73; Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors. AIR 1983 Orissa 121; Laxmi v. A.Sankappa Alwa AIR 1989 Ker. 289; Phoolchand vs. Gopal Lal AIR 1967 SC 1470; Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors. 2007 (2) SCC 355; and Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare 2008 (8) SCC 198, relied on HELD: There is a fundamental difference between mortgage suits and partition suits – In a preliminary decree in a mortgage suit (whether a decree for foreclosure under r.2 or a decree for sale under r.4 of O 34 CPC), the amount due is determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non- payment within the time stipulated is also specified – A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non-payment of the amount – When the amount is not paid, plaintiff gets a right to seek a final decree for foreclosure or for sale – On the other hand, in a partition suit the preliminary decree only decides a part of the suit and, therefore, an application for passing a final decree is only an application in a pending suit, seeking further progress – In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court – In fact several applications for final decree are permissible in a partition suit – The application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds – Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit – Consequently, an application for a final decree in a mortgage suit is different from an application for final decree in a partition suit. HELD: `Partition’ is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees – The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty – A partition of a property can be only among those having a share or interest in it – A person who does not have a share in such property cannot obviously be a party to partition – `Separation of share’ is a species of `partition’ – When all co-owners get separated, it is a partition – Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds – In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff’s share in the suit properties, but also division of his share by metes and bounds – This involves three issues (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner the property/properties should be divided by metes and bounds. HELD: Cases have been found where a suit is decreed or a preliminary decree is granted within a year or two and the final decree proceeding and execution takes decades for completion – This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system – Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits – A conceptual change regarding civil litigation, is required so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant – It is hoped that the Law Commission and Parliament will bestow their attention on this issue and make appropriate recommendations/amendments so that the suit will be a continuous process from the stage of its initiation to the stage of securing actual relief – The present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements – 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 – In so far final decree proceedings are concerned, there is no reason for even legislative intervention – As the provisions of the Code stand as on date, initiation of final decree proceedings does not depend upon an application for final decree for initiation (unless the local amendments require the same) – Practice and Procedure. Case Law Reference: AIR 1929 Oudh 456 relied on para 8 AIR 1945 Bom. 338 relied on para 8 AIR 1957 AP 40 relied on para 8 AIR 1965 Kar. 73 relied on para 8 AIR 1983 Orissa 121 relied on para 8 AIR 1989 Ker. 289 relied on para 8 AIR 1967 SC 1470 relied on para 8 2007 (2) SCC 355 relied on para 8 2008 (8) SCC 198 relied on para 8 CIVIL APPELLATE JURISDICTION : SLP (Civil) No. 17932/2009. From the Judgment and Order dated 15.1.2009 of the High Court of Judicature at Patna in C.R. No. 2216/2008. S.B. Sanyal and Subhro Sanyal for the Petitioner.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION [C] NO.17932 OF 2009 Shub Karan Bubna @ Shub Karan Prasad Bubna … Petitioner Vs. Sita Saran Bubna & Ors. … Respondents ORDER R. V. RAVEENDRAN, J. The first respondent and his mother filed a suit for partition against petitioner and two … Continue reading

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