Supreme Court settles limitation for preliminary partition decrees in property disputes: Venu vs. Ponnusamy Reddiar (27 April 2017)

LEGAL ISSUE: Limitation for execution of preliminary decree for partition.

CASE TYPE: Property Law, Partition

Case Name: Venu vs. Ponnusamy Reddiar (Dead) Thr. Lrs & Anr.

Judgment Date: 27 April 2017

Can a preliminary decree for partition be executed after thirty years? This question was addressed by the Supreme Court of India in a recent case. The Court clarified that there is no limitation period for executing a preliminary decree for partition until a final decree is passed. This judgment provides much-needed clarity on property disputes related to partition. The bench comprised Justices Arun Mishra and Amitava Roy, with the judgment authored by Justice Arun Mishra.

Case Background

The case involves a dispute over the execution of a preliminary decree for partition. The preliminary decree was passed on 23 November 1959. However, the application for its execution was filed on 3 October 1989, after a lapse of thirty years. The appellant sought the appointment of a court commissioner to carry out the preliminary decree.

Timeline

Arguments

The appellant argued that since the application was for the appointment of a court commissioner, it should be governed by Article 137 of the Limitation Act, 1963. This article deals with applications for which no period of limitation is provided elsewhere. On the other hand, the respondent argued that the application was essentially for final decree proceedings. They contended that the preliminary decree is executed once the cost of the final proceedings is paid. Therefore, the application should not be barred by limitation.

Issues Framed by the Supreme Court

The main issue before the Supreme Court was:

1. Whether the application for the execution of a preliminary decree for partition, filed after thirty years, is barred by limitation?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered several authorities to reach its decision:

• Bhusan Chandra Mondal vs. Chhabimoni Dasi [AIR 1948 CALCUTTA 363]: The High Court of Calcutta held that Article 181 of the Limitation Act, 1908, does not apply to final decree proceedings in partition suits. The court noted that unlike mortgage suits, there is no requirement to apply for a final decree in partition suits.
• Laxmi & Ors. vs. A. Sankappa Alwa & Ors. [AIR 1989 KERALA 289]: The High Court of Kerala stated that a preliminary decree does not completely dispose of the suit. The suit continues until the final decree is passed. An application for a final decree is merely a reminder to the court of its duty. Therefore, the Limitation Act does not apply.
• Naresh Kumar & Anr. vs. Smt. Kailash Devi & Ors. [AIR 1999 Punjab and Haryana 102]: The High Court of Punjab & Haryana held that limitation does not apply in partition suits until the final decree is passed.
• Ramanathan Chetty v. Alagappa Chetty [AIR 1930 Mad. 528]: The High Court of Madras held that until a final decree is passed in a partition suit, limitation does not apply.
• Faqir Chand v. Mohammad Akbar Khan [AIR 1933 Peshawar 101(2)]: The High Court of Peshawar observed that there is no obligation on a litigant to apply for final decree proceedings. Thus, the question of limitation does not arise.
• Sudarsan Panda vs. Laxmidhar Panda [AIR 1983 Orissa 121]: The High Court of Orissa took a similar view, stating that limitation does not apply until the final decree is passed.
• Varatharajulu Reddiar vs. Venkatakrishna Reddiar & Ors. [1967 (2) Madras Law Journal 342]: The Madras High Court held that if parties have already partitioned the property by metes and bounds as per the preliminary decree, final decree proceedings are unnecessary.

Judgment

The Court held that a preliminary decree for partition crystallizes the rights of parties for seeking partition to the extent declared. The equities remain to be worked out in final decree proceedings. The court further held that,
“Till partition is carried out and final decree is passed, there is no question of any limitation running against right to claim partition as per preliminary decree.”

The Court also observed that,
“Even when application is filed seeking appointment of Commissioner, no limitation is prescribed for this purpose, as such, it would not be barred by limitation, lis continues till preliminary decree culminates in to final decree.”

The court also held that,
“When once the rights of the parties have been finally determined in a preliminary decree, an application by a party thereto or the legal representatives, for effecting the actual partition in accordance with the directions contained in the preliminary decree can never be construed to be an application within the meaning of the Limitation Act.”

What weighed in the mind of the Court?

The Supreme Court emphasized that a preliminary decree in a partition suit does not fully resolve the matter. The suit continues until a final decree is passed. The court highlighted that there is no specific requirement for a litigant to apply for a final decree. The court also emphasized that the application for appointment of commissioner is a step in furtherance of the preliminary decree and not a fresh cause of action.

Key Takeaways

• ✓ There is no limitation period for executing a preliminary decree for partition until a final decree is passed.
• ✓ An application for the appointment of a court commissioner to carry out a preliminary decree is not subject to any limitation period.
• ✓ The suit continues until the final decree is passed.

Development of Law

The Supreme Court reaffirmed that in partition suits, the suit continues until the final decree is passed. The court clarified that an application for final decree proceedings is not governed by the Limitation Act. This reinforces the principle that the preliminary decree is not the end of the suit, and the parties have the right to seek partition as per the preliminary decree without any limitation.

Conclusion

The Supreme Court dismissed the appeal, holding that the application for execution of the preliminary decree was not barred by limitation. The court emphasized that the suit continues until a final decree is passed, and there is no limitation for seeking partition as per the preliminary decree. This judgment provides clarity on the execution of preliminary decrees in partition suits, ensuring that the rights of parties are protected.

Category

Parent Category: Property Law
Child Category: Partition
Child Category: Limitation Act, 1963
Child Category: Preliminary Decree
Child Category: Final Decree
Parent Category: Civil Procedure Code, 1908
Child Category: Order 20, Rule 18, Civil Procedure Code, 1908

FAQ

Q: What is a preliminary decree in a partition suit?
A: A preliminary decree in a partition suit determines the rights and shares of the parties involved in the property. It’s a first step towards the final division of the property.

Q: What is a final decree in a partition suit?
A: A final decree in a partition suit is the final order that divides the property by metes and bounds, based on the preliminary decree. It is the final step in the partition process.

Q: Is there a time limit to execute a preliminary decree for partition?
A: No, the Supreme Court has clarified that there is no limitation period for executing a preliminary decree for partition until a final decree is passed.

Q: What does it mean for a suit to continue until the final decree?
A: It means that the legal process is not complete with the preliminary decree. The court’s involvement continues until a final decree is passed, which actually divides the property.

Q: What is the significance of this judgment?
A: This judgment clarifies that parties can seek the execution of a preliminary decree for partition even after a long time, as long as a final decree has not been passed. This protects the rights of parties involved in property disputes.