Marichjhapi: Biggest Communist Sponsored Murder of Hindu Refugees in West Bengal

Marichjhapi is one of the 102 islands in the Sundarbans, the delta dominated by mangroves cover one-third of which lies in West Bengal, and the rest is in Bangladesh. The Sunderbans with its mangrove forests is not easy to cultivate. The forests are thick with tigers and the rivers with crocodiles. Yet nothing can deter these men and women. In the year of 1978, around 30,000 Hindu refugees were settled in the Marichjhapi  Island near the Sundarbans area. The population of Marichjhapi swelled to 40,000 from the initial 10,000. It had become a functional village with three lanes, a bazaar, a school, a dispensary, a library, a boat manufacturing unit, and a fisheries department.

Continue Reading

Divisions of Things: Institutes of Justinian

Divisions of Things

Let us now speak of things, which either are in our patrimony, or not in our patrimony. For some things by the law of nature are common to all; some are public; some belong to corporate bodies, and some belong to no one. Most things are the property of individuals who acquire them in different ways, as will appear hereafter.

1. By the law of nature these things are common to mankind—the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings which are not, like the sea, subject only to the law of nations.

2. All rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men.

3. The seashore extends as far as the greatest winter flood runs up.

4. The public use of the banks of a river is part of the law of nations, just as is that of the river itself. All persons, therefore, are as much at liberty to bring their vessels to the bank, to fasten ropes to the trees growing there, and to place any part of their cargo there, as to navigate the river itself But the banks of a river are the property of those whose land they adjoin; and consequently the trees growing on them are also the property of the same persons.

5. The public use of the seashore, too, is part of the law of nations, as is that of the sea itself; and, therefore, any person is at liberty to place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea; for the shores may be said to be the property of no man, but are subject to the same law as the sea itself, and the sand or ground beneath it.

6. Among things belonging to a corporate body, not to individuals, are, for instance, buildings in cities, theaters, race-courses, and other similar places belonging in common to a whole city.

7. Things sacred, religious, and holy belong to no one; for that which is subject to divine law is not the property of any one.

8. Things are sacred which have been duly consecrated by the pontiffs, as sacred buildings and offerings, properly dedicated to the service of God, which we have forbidden by our constitutio to be sold or mortgaged, except for the purposes of purchasing the freedom of captives. But, if any one consecrates a building by his own authority, it is not sacred, but profane. But ground on which a sacred edifice has once been erected, even after the building has been destroyed, continues to be sacred, as Papinian also writes.

9. Any man at his pleasure makes a place religious by burying a dead body in his own ground; but it is not permitted to bury a dead body in land hitherto pure, which is held in common, against the wishes of a co-proprietor. But when a sepulcher is held in common, any one co-proprietor may bury in it, even against the wishes of the rest. So, too, if another person has the usufructus, the proprietor may not, without the consent of the usufructuary, render the place religious. But a dead body may be laid in a place belonging to another person, with the consent of the owner; and even if the owner only ratifies the act after the dead body has been buried, yet the place is religious.

10. Holy things also, as the walls and gates of a city, are to a certain degree subject to divine law, and therefore are not part of the property of any one. The walls of a city are said to be holy, inasmuch as any offence against them is punished capitally; so, too, those parts of laws by which punishments are established against transgressors, we term sanctions.

11. Things become the property of individuals in various ways; of some we acquire the ownership by natural law, which, as we have observed, is also termed the law of nations; of others by the civil law. It will be most convenient to begin with the more ancient law; and it is very evident that the law of nature, established by nature at the first origin of mankind, is the more ancient, for civil laws could then only begin to exist when states began to be founded, magistrates to be created, and laws to be written.

12. Wild beasts, birds, fish and all animals, which live either in the sea, the air, or the earth, so soon as they are taken by anyone, immediately become by the law of nations the property of the captor; for natural reason gives to the first occupant that which had no previous owner. And it is immaterial whether a man takes wild beasts or birds upon his own ground, or on that of another. Of course any one who enters the ground of another for the sake of hunting or fowling, may be prohibited by the proprietor, if he perceives his intention of entering. Whatever of this kind you take is regarded as your property, so long as it remains in your power, but when it has escaped and recovered its natural liberty, it ceases to be yours, and again becomes the property of him who captures it. It is considered to have recovered its natural liberty, if it has either escaped out of your sight, or if, though not out of your sight, it yet could not be pursued without great difficulty.

13. It has been asked, whether, if you have wounded a wild beast, so that it could be easily taken, it immediately becomes your property. Some have thought that it does become yours directly you wound it, and that it continues to be yours while you continue to pursue it, it then ceases to be yours, and again becomes the property of the first person who captures it. Others have thought that it does not become your property until you have captured it. We confirm this latter opinion, because many accidents may happen to prevent your capturing it.

14. Bees also are wild by nature. Therefore, bees that swarm upon your tree, until you have hived them, are no more considered to be your property than the birds which build their nests on your tree; so, if any one hive them, he becomes their owner. Any one, too, is at liberty to take the honeycombs the bees may have made. But of course, if, before anything has been taken, you see any one entering on your land, you have a right to prevent his entering. A swarm which has flown from your hive is still considered yours as long as it is in your sight and may easily be pursued; otherwise it becomes the property of the first person that takes it.

15. Peacocks, too, and pigeons, are naturally wild, nor does it make any difference that they are in the habit of flying out and then returning again, for bees, which without doubt are naturally wild, do so too. Some persons have deer so tame, that they will go into the woods, and regularly again return; yet no one denies that deer are naturally wild. But, with respect to animals which are in the habit of going and returning, the rule has been adopted, that they are considered yours as long as they have the intention of returning, but if they cease to have this intention, they cease to be yours, and become the property of the first person that takes them. These animals are supposed to have lost the intention, when they have lost the habit, of returning.

16. But fowls and geese are not naturally wild, which we may learn from there being particular kinds of fowls and geese which we term wild. And, therefore, if your geese or fowls should be frightened, and take flight, they are still regarded as yours wherever they may be, although you may have lost sight of them; and whoever detains such animals with a view to his own profit, commits a theft.

17. The things we take from our enemies become immediately ours by the law of nations, so that even freemen thus become our slaves; but if they afterwards escape from us, and return to their own people, they regain their former condition.

18. Precious stones, gems, and other things found upon the seashore become immediately, by natural law, the property of the finder.

19. All that is born of animals of which you are the owner, becomes by the same law your property.

20. Moreover, the alluvial soil added by a river to your land becomes yours by the law of nations. Alluvion is an imperceptible increase; and that is added so gradually that no one can perceive how much is added at any one moment of time.

21. But if the violence of a river should bear away a portion of your land and unite it to the land of your neighbor, it undoubtedly still continues yours. If, however, it remains for long united to your neighbor’s land, and the trees, which it swept away with it, take root in his ground, these trees from that time become part of your neighbor’s estate.

22. When an island is formed in the sea, which rarely happens, it is the property of the first occupant; for before occupation, it belongs to no one. But when an island is formed in a river, which frequently happens, if it is placed in the middle of it, it belongs in common to those who possess the lands near the banks on each side of the river, in proportion to the extent of each man’s estate adjoining the banks. But, if the island is nearer to one side than the other, it belongs to those persons only who possess lands contiguous to the bank on that side. If a river divides itself and afterwards unites again, thus giving to any one’s land the form of an island, the land still continues to belong to the person to whom it belonged before.

23. If a river, entirely forsaking its natural channel, begins to flow in another direction, the old bed of the river belongs to those who possess the lands adjoining its banks, in proportion to the extent that their respective estates adjoin the banks. The new bed follows the condition of the river, that is, it becomes public. And, if, after some time, the river returns to its former channel, the new bed again becomes the property of those who possess the lands contiguous to its banks.

24. The case is quite different if anyone’s land is completely inundated; for the inundation does not alter the nature of the land, and therefore, when the waters have receded, the land is indisputably the property of its former owner.

25. When one man has made anything with materials belonging to another, it is often asked which, according to natural reason, ought to be considered the proprietor, whether he who gave the form, or he rather who owned the materials. For instance, suppose a person has made wine, oil, or wheat from the grapes, olives, or ears of corn belonging to another; has cast a vessel out of gold, silver, or brass, belonging to another; has made mead with another man’s wine and honey; has composed a plaster, or eye-salve, with another man’s medicaments; has made a garment with another man’s wool; or a ship, or a bench, with another man’s timber. After a long controversy between the Sabinians and Proculians, a middle opinion has been adopted based on the following distinction. If the thing made can be reduced to its former rude materials, then the owner of the materials is also considered the owner of the thing made; but, if the thing cannot be so reduced, then he who made it is the owner of it. For example, a vessel when cast, can easily be reduced to its rude materials of brass, silver, or gold; but wine, oil, or wheat, cannot be reconverted into grapes, olives, or ears of corn; nor can mead be resolved into wine and honey. But, if a man has made anything, partly with his own materials and partly with the materials of another, as if he has made mead with his own wine and another man’s honey, or a plaster or eye-salve, partly with his own, and partly with another man’s medicaments, or a garment with his own and also with another man’s wool, then in such cases, he who made the thing is undoubtedly the proprietor; since he not only gave his labor, but furnished also a part of the materials.

26. If, however, any one has woven purple belonging to another into his own vestment, the purple, although the more valuable, attaches to the vestment as an accession, and its former owner has an actio of theft and a condictio against the person who stole it from him, whether it was he or some one else who made the vestment. For although things which have perished cannot be reclaimed by vindicatio, yet this gives ground for a condictio against the thief, and against many other possessors.

27. If materials belonging to two persons are mixed together by their mutual consent, whatever is thence produced is common to both, as if, for instance, they have intermixed their wines, or melted together their gold or silver. And although the materials are different which are employed in the admixture, and thus a new substance is formed, as when mead is made with wine and honey, or electrum by fusing together gold and silver, the rule is the same; for in this case the new substance is undoubtedly common. And if it is by chance, and not by intention of the proprietors, that materials, whether similar or different, are mixed together, the rule is still the same.

28. If the wheat of Titius is mixed with yours, when this takes place by mutual consent, the mixed heap belongs to you in common because each body, that is, each grain, which before was the property of one or other of you, has by your mutual consent been made your common property; but, if the intermixture were accidental, or made by Titius without your consent, the mixed wheat does not then belong to you both in common; because the grains still remain distinct, and retain their proper substance. The wheat in such a case no more becomes common to you both, than a flock would be, if the sheep of Titius were mixed with yours; but, if either of you keep the whole quantity of mixed wheat, the other has a real actio for the amount of wheat belonging to him, but it is in the province of the judge to estimate the quality of the wheat belonging to each.

29. If a man builds upon his own ground with the materials of another, he is considered the proprietor of the building, because everything built on the soil accedes to it. The owner of the materials does not, however, cease to be owner; only while the building stands he cannot claim the materials, or demand to have them exhibited, on account of the law of the Twelve Tables, providing that no one is to be compelled to take away the tignum of another which has been made part of his own building, but that he may be made, by the actio de tigno injuncto, to pay double the value; and under the term tignum all materials for building are comprehended. The object of this provision was to prevent the necessity of buildings being pulled down. But if the building is destroyed from any cause, then the owner of the materials, if he has not already obtained the double value, may reclaim the materials, and demand to have them exhibited.

30. On the contrary, if anyone builds with his own materials on the ground of another, the building becomes the property of him to whom the ground belongs. But in this case the owner of the property, because he is presumed to have voluntarily parted with them, that is, if he knew he was building upon another’s land; and, therefore, if the building should be destroyed, he cannot, even then, reclaim the materials. Of course, if the person who builds is in possession of the soil, and the owner of the soil claims the building, but refuses to pay the price of the materials and the wages of the workmen, the owner may be repelled by an exception of dolus malus, provided the builder was in possession bona fide. For if he knew that he was not the owner of the soil, it may be said against him that he was wrong to build on ground which he knew to be the property of another.

31. If Titius places another man’s plant in ground belonging to himself, the plant will belong to Titius; on the contrary, if Titius places his own plant in the ground of Maevius, the plant will belong then to Maevius—that is if, in either case, the plant has taken root; for before it has taken root, it remains the property of its former owner. But from the time it has taken root, the property in it is changed; so much so, that if the tree of a neighbor presses so closely on the ground of Titius as to take root in it, we pronounce that the tree becomes the property of Titius. For reason does not permit that a tree should be considered the property of anyone else than of him in whose ground it has taken root; and, therefore, if a tree, planted near a boundary extends its roots into the lands of a neighbor, it becomes common.

32. As plants rooted in the earth accede to the soil, so, in the same way, grains of wheat which have been sown are considered to accede to the soil. But as he who has built on the ground of another may, according to what we have said, defend himself by an exception of dolus malus, if the proprietor of the ground claims the building, so also he may protect himself by the aid of the same exception, who, at his own expense and acting bona fide, has sown another man’s land.

33. Written characters, although of gold, accede to the paper or parchment on which they are written, just as whatever is built on, or sown in, the soil, accedes to the soil. And, therefore, if Titius has written a poem, a history, or an oration, on your paper or parchment, you, and not Titius, are the owner of the written paper. But, if you claim your books or parchments from Titius, but refuse to defray the cost of the writing, then Titius can defend himself by an exception of dolus malus; that is, if it was bona fide that he obtained possession of the papers or parchments.

34. If a person has painted on the tablet of another, some think that the tablet accedes to the picture, others, that the picture, of whatever quality it may be, accedes to the tablet. It seems to us the better opinion that the tablet should accede to the picture; for it is ridiculous that a painting of Apelles or Parrhasius should be but the accessory of a thoroughly worthless tablet. But if the owner of the tablet is in possession of the picture, the painter, should he claim it from him, but refuse to pay the value of the tablet, may be repelled by the exception of dolus malus. If the painter is in possession of the picture, the law permits the owner of the tablet to bring a utilis actio against him; and in this case, if the owner of the tablet does not pay the cost of the picture, he may also be repelled by an exception of dolus malus; that is, if the painter obtained possession bona fide. If the tablet has been stolen, whether by the painter or by any one else, the owner of the tablet may bring an actio of theft.

35. If any person has, bona fide, purchased land from another, whom he believed to be the true owner, when in fact he was not, or has, bona fide, acquired it from such person by gift or by other good title, natural reason demands that the fruits which he has gathered shall be his in return for his care and culture. And, therefore, if the real owner afterwards appears and claims his land, he can have no actio for fruits which the possessor has consumed. But the same allowance is not made to him who has knowingly been in possession of another’s estate, and, therefore, he is compelled to restore, together with the lands, all the fruits, although they may have been consumed.

36. The usufructuary of land is not owner of the fruits until he has himself gathered them; and, therefore, if he should die while the fruits, although ripe, are yet ungathered, they do not belong to his heirs, but are the property of the owner of the soil. And nearly the same may be said of the colonus.

37. In the fruits of animals are included their young, as well as their milk, hair and wool; and, therefore, lambs, kids, calves, colts, and young pigs immediately on their birth become, by the law of nature, the property of the usufructory, but the offspring of a female slave is not considered a fruit, but belongs to the owner of the property. For it seemed absurd that man should be reckoned as a fruit, when it is for man’s benefit that all fruits are provided by nature.

38. The usufructuary of a flock ought to replace any of the flock that may happen to die by supplying the deficiency out of the young, as also Julian was of opinion. So, too, the usufructuary ought to supply the place of dead vines or trees. For he ought to cultivate with care, and to use everything as a good father of a family would use it.

39. The Emperor Hadrian, in accordance with natural equity, allowed any treasure found by a man in his own land to belong to the finder, as also any treasure found by chance in a sacred or religious place. But treasure found without any express search, but by mere chance, in a place belonging to another, he granted half to the finder, and half to the proprietor of the soil. Consequently, if anything is found in a place belonging to the emperor, half belongs to the finder, and half to the emperor. And hence it follows, that if a man finds anything in a place belonging to the fiscus, the public, or a city, half ought to belong to the finder, and half to the fiscus or the city.

40. Another mode of acquiring things according to natural law is traditional; for nothing is more conformable to natural equity than that the wishes of a person, who is desirous to transfer his property to another, should be confirmed; and, therefore, corporeal things, of whatever kind, may be so passed by tradition, and when so passed by their owner, are made the property of another. In this way are alienated stipendiary and tributary lands, that is, lands in the provinces, between which and Italian lands there is now, by our constitutio, no difference, so that when tradition is made of them for purpose of a gift, a marriage portion, or any other object, the property in them is undoubtedly transferred.

41. But things sold and delivered are not acquired by the buyer until he has paid the seller the price, or satisfied him in some way or other, as by procuring some one to be security, or by giving a pledge. And, although this is provided by a law of the Twelve Tables, yet it may be rightly said to spring from the law of nations, that is, the law of nature. But if the seller has accepted the credit of the buyer, the thing then becomes immediately the property of the buyer.

42. It is immaterial whether the owner deliver the thing himself, or some one else by his desire.

43. Hence, if any one is instructed by an owner with the uncontrolled administration of all his goods, and he sells and delivers anything which is a part of these goods, he passes the property in it to the person who receives the thing.

44. Sometimes, too, the mere wish of the owner, without tradition, is sufficient to transfer the property in a thing, as when a person has lent, or let to you anything, or deposited anything with you, and then afterwards sells or gives it to you. For, although he has not delivered it to you for the purpose of the sale or gift, yet by the mere fact of his consenting to it becoming yours, you instantly acquire the property in it, as fully as if it had actually been delivered to you for the express purpose of passing the property.

45. So, too, anyone who has sold goods deposited in a warehouse, as soon as he has handed over the keys of the warehouse to the buyer, transfers to the buyer the property in the goods.

46. Nay, more, sometimes the intention of an owner, although directed only towards an uncertain person, transfers the property in a thing. For instance, when the praetors and consuls throw their largesse to the mob, they do not know what each person in the mob will get; but as it is their intention that each should get what he gets, they make what each gets immediately belong to him.

47. Accordingly, it is true to say that anything which is seized on, when abandoned by its owners, becomes the property of the person who takes possession of it. And anything is considered as abandoned which its owner has thrown away with a wish no longer to have it as a part of his property, as it therefore immediately ceases to belong to him.

48. It is otherwise with respect to things thrown overboard in a storm, to lighten a vessel; for they remain the property of their owners; as it is evident that they were not thrown away through a wish to get rid of them, but that their owners and the ship itself might more easily escape the dangers of the sea. Hence, anyone who, with a view to profit himself by these, takes them away when washed on shore, or found at sea, is guilty of theft. And much the same may be said as to things which drop from a carriage in motion without the knowledge of their owners.


 

Shub Karan Bubna @ Shub Karan Prasad Bub Vs Sita Saran Bubna AND OTHERS-21/8/2009

SUPREME COURT OF INDIA JUDGMENTS

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.

AIR 2009 SCW 6541 : JT 2009 (11) SC 583 : (2009) 12 SCALE 259 : (2009) 9 SCC 689

SUPREME COURT OF INDIA

Shub Karan Bubna @ Shub Karan Prasad Bub

Versus

Sita Saran Bubna AND OTHERS

(Before : R. V. Raveendran And B. Sudershan Reddy, JJ.)

S. L. P. (Civil) No. 17932 of 2009, Decided on : 21-08-2009.

Civil Procedure Code, 1908—Order 20, Rule 18—Partition—Partition is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners—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 be a party to a partition.

Limitation Act, 1963—Section 2(j) and Article 137—Civil Procedure Code, 1908—Order 20, Rule 18—Applicability of provisions of Limitation Act to an application for drawing up final decree—An application requesting Court to take necessary steps to draw up final decree effecting division in terms of preliminary decree, is neither an application for execution nor an application seeking fresh relief—Application for drawing up of final decree is not subject to any period of limitation—When a preliminary decree is passed in a partition suit, proceedings should be continued by fixing dates for further proceedings till a final decree is passed—It is duty and function of Court—Performance of such function does not require a reminder from litigant.

Counsel for the Parties:

S. B. Sanyal, Sr. Advocate and Subhro Sanyal, with him for Petitioner.

Judgment

R. Vs. Raveendran, J—The first respondent and his mother filed a suit for partition against petitioner and two others in the year 1960 in the Court of the First Additional Judge, Muzaffarnagar, for partition and separate possession of their one-third share in the plaint schedule properties and for rendition of accounts. The suit was in respect of three non-agricultural plots and some movables. After contest the suit was decreed on 25.2.1964 directing a preliminary decree for partition be drawn in regard to the one-third share of the plaintiffs in the said plots and a final decree be drawn up through appointment of a Commissioner for actual division of the plots by metes and bounds.

2. Feeling aggrieved the petitioner (and others) filed an appeal before the Patna High Court which was dismissed on 29.3.1974. The first respondent filed an application on 1.5.1987 for drawing up a final decree. The petitioner filed an application on 15.4.1991 to drop the final decree proceedings as it was barred by limitation. The said application was dismissed by the trial Court holding that once the rights/shares of the plaintiff had been finally determined by a preliminary decree, there is no limitation for an application for affecting the actual partition/division in accordance with the preliminary decree, as it should be considered to be an application made in a pending suit. The said order was challenged by the petitioner in a revision petition which was dismissed by the High Court order dated 15.1.2009. The petitioner has filed this special leave petition seeking leave to appeal against the said decision of the High Court.

3. The appellant contends that when a preliminary decree is passed in a partition suit, a right enures to the plaintiff to apply for a final decree for division of the suit property by metes and bounds; that whenever an application is made to enforce a right or seeking any relief, such application is governed by the law of limitation; that an application for drawing up a final decree would be governed by the residuary Article 137 of Limitation Act, 1963 (‘Act’ for short) which provides a period of limitation of three years; that as such right to apply accrues on the date of the preliminary decree, any application filed beyond three years from the date of preliminary decree (that is 12.3.1964) or at all events beyond three years from the date when the High Court dismissed the defendant’s appeal (that is 29.3.1974) would be barred by limitation. Reliance was placed by the petitioner on the decision of this Court in Sital Parshad vs. Kishori Lal (AIR 1967 SC 1236, the decision of the Privy Council in Saiyid Jowad Hussain vs. Gendan Singh (AIR 1926 PC 93) and a decision of the Patna High Court in Thakur Pandey vs. Bundi Ojha (AIR 1981 Patna 27) in Suppl ort of his contention.

The issue :

4. ‘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 severally. 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 a partition. ‘Separation of share’ is a species of ‘partition’. When all co-owners get separated, it is a partition. Separation of shares/ 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. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants tp get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. 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?

5. In a suit for partition or separation of a share, the Court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as ‘decree’ under Order 20 Rule 18(1) and termed as ‘preliminary decree’ under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2). The question is whether the provisions of Limitation Act are inapplicable to an application for drawing up a final decree.

6. Rule 18 of Order 20 of the Code of Civil Procedure (‘Code’ for short) deals with decrees in suits for partition or separate possession of a share therein which is extracted below:

“18: Decree in suit for partition of property or separate possession of a share therein. – Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54;

(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required.”

The terms ‘preliminary decree’ and ‘final decree’ used in the said rule are defined in Explanation to Section 2(2) of the Code and reads thus :

“A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”

Section 54 of the Code dealing with partition of estate or separation of share, relevant for purposes of Rule 18(1) reads thus :

“Where the decree is for the partition of an undivided estate assessed to the payment of revenue of the government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted sub-ordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.”

Rule 13 of Order 26 of the Code dealing with Commissions to make partition of immovable property, relevant for purposes of Rule 18(2) reads thus :

“Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by Section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.”

7. We may now turn to the provisions of the Limitation Act, 1963. Section 3 of the Act provides that subject to Sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed. The term ‘period of limitation’ is defined as the period of limitation prescribed for any suit, appeal or application by the Schedule to the Act (vide clause (j) of Section 2 of the Act). The term “prescribed period” is defined as the period of limitation computed in accordance with the provisions of the said Act. The Third Division of the Schedule to the said Act prescribes the periods of limitation for Applications. The Schedule does not contain any Article prescribing the limitation for an application for drawing up of a final decree. Article 136 prescribes the limitation for execution of any decree or order of civil Court as 12 years when the decree or order becomes enforceable. Article 137 provides that for any other application for which no period of limitation is provided elsewhere in that division, the period of limitation is three years which would begin to run from the time when the right to apply accrues. It is thus clear that every application which seeks to enforce a right or seeks a remedy or relief on the basis of any cause of action in a civil Court, unless otherwise provided, will be subject to the law of limitation. But where an application does not invoke the jurisdiction of the 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 in a suit which is already pending, which contains no fresh or new prayer for relief is not one to which Limitation Act, 1963 would apply. These principles are evident from the provisions of the Code and the Limitation Act and also settled by a series of judgments of different High Courts over the decades (See : for example, Lalta Prasad vs. Brahma Din (AIR 1929 Oudh 456, Ramabai Govind vs. Anant Daji (AIR 1945 Bom 338, Abdul Kareem Sab vs. Gowlivada S. Silar Saheb (AIR 1957 AP 40, A. Manjundappa vs. Sonnappa and Ors. (AIR 1965 Kar. 73, Sudarsan Panda and Ors. vs. Laxmidhar Panda and Ors. (AIR 1983 Orissa 121, Laxmi vs. A. Sankappa Alwa (AIR 1989 Ker 289. We may also draw Suppl ort from the judgments of this Court in Phoolchand vs. Gopal Lal (AIR 1967 SC 1470, Hasham Abbas Sayyad vs. Usman Abbas Sayyad and Ors. (2007) 2 SCC 355 and Bikoba Deora Gaikwad vs. Hirabai Marutirao Ghorgare (2008) 8 SCC 198.

8. Once a Court passes a preliminary decree, it is the duty of the Court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division. This duty in the normal course has to be performed by the Court itself as a continuation of the preliminary decree. Sometimes either on account of the pendency of an appeal or other circumstances, the Court passes the decree under Rule 18(1) or a preliminary decree under Rule 18(2) and the matter goes into storage to be revived only when an application is made by any of the parties, drawing its attention to the pending issue and the need for referring the matter either to the Collector or a Commissioner for actual division of the property. Be that as it may.

9. The following principles emerge from the above discussion regarding partition suits :

In regard to estates assessed to payment of revenue to the government (agricultural land, the Court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the Court in regard to the shares of various parties and deliver the respective portions to them, in accordance with Section 54 of Code. Such entrustment to the Collector under law was for two reasons. First is that Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of government in regard to revenue. (The second reason, which was very important in the 19th century and early 20th century when the Code was made, has now virtually lost its relevance, as revenue from agricultural lands is negligible). Where the Collector acts in terms of the decree, the matter does not come back to the Court at all. The Court will not interfere with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby.

In regard to immovable properties (other than agricultural lands paying land revenue, that is buildings, plots etc. or movable properties :

(i) where the Court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the Court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds. (ii) where the division by metes and bounds cannot be made without further inquiry, the Court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usually an Engineer, Draughtsman, Architect, or Lawyer) to physically examine the property to be divided and suggest the manner of division. The Court then hears the parties on the report, and passes a final decree for division by metes and bounds.

The function of making a partition or separation according to the rights declared by the preliminary decree, (in regard to non-agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the Court; and after hearing objections to the report, if any, the Court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the Court may direct sale thereof and distribution of the proceeds as per the shares declared.

As the 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. The 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 the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act). It is only a reminder to the Court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.

10. The three decisions relied on by the petitioner (referred to in para 3 above) are not relevant for deciding the issue arising in this case. They all relate to suits for mortgage and not partition. 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 Rule 2 or a decree for sale under Rule 4 of Order 34 of the Code, 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 the plaintiff gets a right to seek a final decree for foreclosure or for sale. On the other hand, in a partition suit the preliminary decrees only decide 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. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree. A preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus 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 partition suits.

A suggestion for debate and legislative action

11. The century old civil procedure contemplates judgments, decrees, preliminary decrees and final decrees and execution of decrees. They provide for a ‘pause’ between a decree and execution. A ‘pause’ has also developed by practice between a preliminary decree and a final decree. The ‘pause’ is to enable the defendant to voluntarily comply with the decree or declaration contained in the preliminary decree. The ground reality is that defendants normally do not comply with decrees without the pursuance of an execution. In very few cases, the defendants in a partition suit, voluntarily divide the property on the passing of a preliminary decree. In very few cases, defendants in money suits, pay the decretal amount as per the decrees. Consequently, it is necessary to go to the second stage that is levy of execution, or applications for final decree followed by levy of execution in almost all cases.

12. A litigant coming to Court seeking relief is not interested in receiving a paper decree, when he succeeds in establishing his case. What he wants is relief. If it is a suit for money, he wants the money. If it is a suit for property, he wants the property. He naturally wonders why when he files a suit for recovery of money, he should first engage a lawyer and obtain a decree and then again engage a lawyer and execute the decree. Similarly, when he files a suit for partition, he wonders why he has to first secure a preliminary decree, then file an application and obtain a final decree and then file an execution to get the actual relief. The common-sensical query is : why not a continuous process? The litigant is perplexed as to why when a money decree is passed, the Court does not fix the date for payment and if it is not paid, proceed with the execution; when a preliminary decree is passed in a partition suit, why the Court does not forthwith fix a date for appointment of a Commissioner for division and make a final decree and deliver actual possession of his separated share. Why is it necessary for him to remind the Court and approach the Court at different stages?

13. Because of the artificial division of suits into preliminary decree proceedings, final decree proceedings and execution proceedings, many Trial judges tend to believe that adjudication of the right being the judicial function, they should concentrate on that part. Consequently, adequate importance is not given to the final decree proceedings and execution proceedings which are considered to be ministerial functions. The focus is on disposing of cases, rather than ensuring that the litigant gets the relief. But the focus should not only be on early disposal of cases, but also on early and easy securement of relief for which the party approaches the Court. Even among lawyers, importance is given only to securing of a decree, not securing of relief. Many lawyers handle suits only till preliminary decree is made, then hand it over to their juniors to conduct the final decree proceedings and then give it to their clerks for conducting the execution proceedings. Many a time, a party exhausts his finances and energy by the time he secures the preliminary decree and has neither the capacity nor the energy to pursue the matter to get the final relief. As a consequence, we have found cases where a suit is decreed or a preliminary decree is granted within a year or two, 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.

14. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant. We hope 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.If there is a practice of assigning separate numbers for final decree proceedings that should be avoided. Issuing fresh notices to the defendants at each stage should also be avoided. 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 money suits and other suits requiring a single decree, the process of suit should be a continuous process consisting of the first stage relating to determination of liability and then the second stage of execution and recovery, without any pause or stop or need for the plaintiff to initiate a separate proceedings for execution. In suits for partition and other suits involving declaration of the right and ascertainment/quantification of the relief, the process of the suit should be continuous, consisting of the first stage of determination and declaration of the right, second stage of ascertainment/division/ quantification, and the third stage of execution to give actual relief.

Conclusion

15. In so far 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.

16. In view of the foregoing, we are of the view that the application filed by the plaintiff in this case for drawing up of a final decree, was rightly held to be not subject to any period of limitation. We therefore dismiss this special leave petition as having no merit, with a request to expedite the final decree proceedings.

Partition Act, 1893

Contents

1.Title, extent and saving
2.Power to Court to order sale instead of division in partition suits
3.Procedure when sharer undertakes to buy
4.Partition suit by transferee of share in dwelling house
5.Representation of parties under disability
6.Reserved bidding and bidding by shareholders
7.Procedure to be followed in case of sales
8.Orders for sale to be deemed decrees
9.Saving of power to order partly partition and partly sale
10.Application of Act to pending suits

WHEREAS it is expedient to amend the law relating to partition; It is hereby enacted as follows:—

1.Title, extent and saving

(1) This Act may be called the Partition Act, 1893;

(2) It extends to the whole of India except the State of Jammu and Kashmir

(3) rep

(4) But nothing herein contained shall be deemed to affect any local law providing for the partition of immovable property paying revenue to Government.

2.Power to Court to order sale instead of division in partition suits

Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the ins property to which the suit relates, or of the number of the share- holders therein, or of any other special circumstance, a division of such property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more benefice for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.

3.Procedure when sharer undertakes to buy

(1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or to parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf.

(2) If two or more shareholders severally apply for leave to buy as provided in sub-section (1), the Court shall order a sale of the share declaration shares to the shareholder who offers to pay the highest price above the valuation made by the Court.

(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.

4.Partition suit by transferee of share in dwelling house

(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.

(2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.

5.Representation of parties under disability

In any suit for partition a request for sale may be made or an undertaking, or application for leave, to buy may be given or made on behalf of any party under disability by any person authorised to act on behalf of such party in such suit, but the Court shall not be bound to comply with any such request, undertaking or application unless it is of opinion that the sale or purchase will be for the benefit of the party under such disability.

6.Reserved bidding and bidding by shareholders

(1) Every sale under section 2 shall be subject to a reserved bidding, and the amount of such bidding shall be fixed by the Court in such manner as it may think fit and may be varied from time to time.

(2) On any such sale any of the shareholders shall be at liberty to bid at the sale on such terms as to non-payment of deposit or as to setting of or accounting for the purchase-money or any part thereof instead of paying the same as to the Court may seem reasonable.

(3) If two or more persons, of whom one is a shareholder in the property, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the shareholder.

7.Procedure to be followed in case of sales

Save as hereinbefore provided, when any property is directed to be sold under this Act, the following procedure shall, as far as practicable, be adopted, namely:—

(a) if the property be sold under a decree or order of the High Court of Calcutta, Madras or Bombay in the exercise of its original jurisdiction, the procedure of such Court in its original civil jurisdiction for the sale of property by the Registrar;

(b) if the property be sold under a decree or order of any other Court, such procedure as the High Court may from time to time by rules prescribe in this behalf, and until such rules are made, the procedure prescribed in the Code of Civil Procedure ( 14 of 1882 ) in respect of sales in execution of decrees.

8.Orders for sale to be deemed decrees

Any order for sale made by the Court under section 2, 3 or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure ( 14 of 1882 ).

9.Saving of power to order partly partition and partly sale

In any suit for partition the Court may, if it shall think fit, make a decree for a partition of part of the property to which the suit relates and a sale of the remainder under this Act.

10.Application of Act to pending suits

This Act shall apply to suits instituted before the commencement thereof, in which no scheme for the partition of the property has been finally approved by the Court.

Whether a suit is instituted by an adult or a minor they stand on the same footing

Supreme Court in Kakumanu Peda Subbayya and Another Vs. Kakumanu Akkamma and Another, . Repelling the argument that an adult can bring about a division in status as he will be in a position to express his opinion clearly and unambiguously but a minor cannot express the same, the Supreme Court held that a suit filed by a next friend on behalf of minor would bring about a severance as effectively as it is done by a suit instituted by an adult plaintiff. The Supreme Court held as follows:Continue Reading

Partition of property governed by Mitakshra Law

The Concept

Hon’ble Supreme Court in the case of Hardeo Rai vs. Sakuntala Devi & others reported in (2008) 7 SCC 46 that-

“According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See   Mitakshara, Chapter I. 1-27). The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter.”


Supreme Court in Balmukand Vs. Kamla Wati and Others:

No doubt Pindi Dass himself was bound by the contract which he has entered into and the Plaintiff would have been entitled to the benefit of Section 15 of the Specific Relief Act which runs thus.

On the basis of the same observations, the decision in Jawala Singh’s case (supra) was confirmed by the Letters Patent Bench In Balmukand’s case (supra) no question that where Mitakshra law prevailed alienation of joint Hindu family property made by the Manager or any coparcenor without any legal necessity and consent by the other coparcenors did not bind the share of the alienor, was raised before the Supreme Court and as such the observations referred to above which were made in the context of Section 15 of the Specific Relief Act would be operative in that limited sphere. By no stretch of reasoning while making the said observations, the Supreme Court can be said to have laid down the law that in the States where Mitakshra law applies, alienation would be binding qua the share of the vendor even though it was made without the consent of other coparcenors and legal necessity nor for the benefit of the estate.


Before the decision of  Balmukand Vs. Kamla Wati and Others the law was :

It was admitted between the parties that in Punjab and Haryana, the Hindus are governed by Mitakshra School of Hindu Law. According to paragraph 269 of the Hindu Law by Mulla which is a book of unquestioned authority since more than half a century, where a member of joint Hindu family, governed by Mitakshara law sells or mortgages the joint Hindu family property or any part thereof without the consent of the coparcenor the alienation is liable to be set aside wholly unless it was for legal necessity and it does not pass the share even of the alienating coparcenor. It has been further laid down in ‘this paragraph that even in the Punjab where by custom son cannot claim partition against father, the son is entitled to joint possession with the father when the alienation is set aside. Similar is the statement of law contained in paragraph 260. The above statement of law was duly recognised and enforced by the Privy Council in Lachhman Prasad and Ors. v. Sarnam Singh and Ors. AIR 1917 P.C. 41, Anant Ram and Ors. v. Collector of Etah and Ors. AIR 1917 P.C. 188, and Manna Lal v. Karu Singh and Anr. AIR 1919 P.C. 108. The Full Bench of the Allahabad High Court in Chandradeo Singh and Ors. v. Mata Prasad and Ors. I Indian Cases 479 (F.B.), and Mathura Misra and Another Vs. Rajkumar Misra and Others, , laid down the law to the same effect. In the United Punjab also as expressed in Badam and Ors. v. Madho Ram and Ors. AIR 1922 Lah. 241 , AIR 1925 130 (Lahore) , AIR 1928 111 (Lahore) , AIR 1932 636 (Lahore) , and AIR 1933 343 (Lahore) , the established view has been the same.


The traditional position of Law:-

Section 8 governs succession of the property of a Hindu male and it implies that property must be such which is capable of devolving by succession. Under the traditional Hindu law, the Mitakshra law recognized two modes of devolution of property: (a) joint family property devolved by survivorship and (b) separate property devolved by succession. Under the Mitakshra law, when property passed into the hands of sole surviving coparcener. Then also it devolved by succession. On the other hand, under the Dayabhaga law, all properties devolved by succession. Under the traditional Hindu law, when a son inherits the property from his father, vis-a-vis sons, he takes it as joint family property. Hindu Succession Act has now made a difference. This Act has introduced a new set of heirs and when a Hindu inherits the property from his father under Section 8 , Hindu Succession Act, he takes it as his separate property and not as joint family property vis-a-vis his sons. Inherited property would lose its character of joint family property. The Act brought about a sea change in the matter of inheritance and succession amongst Hindus. Section 4 of the Act contains a non-obstante provision in terms whereof any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act, ceased to have effect with respect to any matter for which provision is made therein save as otherwise expressly provided. Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolve according to the provisions of the Chapter as specified in clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed in Class-I heirs but a grandson, so long as father is alive, has not been included. In the case law titled as Musini Leela Parsad versus Musinin Bhavani and others 1995(2) Civil Court Cases 94, it has been held “Ancestral property inherited by son on the death of his father shall be treated as his separate property and his son is not entitled to a share in it by birth. In the present suit, admittedly, Santa father of Hansu has died after the commencement of Hindu Succession Act and estate of Santa was inherited by his son Hansu father of the plaintiff under Section 8 being his Class-I legal heir along with Dassu Ram. Thus, Hans Raja inherited this property as separate property and not as Joint Hindu Family Coparcenary Property. In view of the above discussion, I am of the considered opinion that suit property comprised in chaser No. 23//1/5(1-1), 10/2(0-2) and khasra number 281/(0-3) and 210/2(0-19) as fully detailed in the head note of the plaint is not a Joint Hindu Family Coparcenary Property rather it was a separate property in the hands of Daya Ram.”


Place of daughter

In a Hindu family governed by the Mitakshra law, the son and the grandson acquires a right in the property along with their father. The daughter does not acquire any such right. She acquires a right in the share of her father only on the death of her father along with other heirs.


Case of Migration

Pitambar Chandra Shaha Chowdhury vs. Nishi Kanta Saha reported in 24 CWN 215, wherein it was held that:-
“A Hindu family residing in a particular province of India is presumed to be governed by the law of the place where it resides, but where a Hindu family is shown to have migrated from one province to another, the presumption is that it carried with it the
laws and customs as to succession and family relation prevailing in the province from which it came and this presumption, however, is rebuttable by proof that the family has adopted the laws and usages of the place to which it has migrated.”

 It is well settled is the law that where a Hindu family migrates from ones state to another, the presumption is that it carries with it, its personal law, that is, the laws and the customs as to succession and family relations prevailing in the state from which it came. However, this presumption may be rebutted by showing that the family has adopted the law and usage of the province to which it has migrated. The principle is illustrated in Mulla’s Hindu Law, 22nd Edition at page 95 in following words:- A Hindu family migrates from north eastern provinces, where Mitakshara Law prevails, to Bengal, where Dayabhaga law prevails. The presumption is that it continues to be governed by Mitakshara Law, and this presumption may be supported by previous instance of succession in the family according to Mitakshara Law after its migration and by evidence relating to ceremonies performed in the family at marriages, births and Shraddhs, showing that the family continued to be governed by Mitakshara Law after its migration. If the migration is proved, and it is also proved that the family followed the customs of the Mitakshara Law, it is not necessary to prove also that the family immigrated to Bengal after the establishment of Dayabhaga system of Law.”

Thus, the issue as to whether a particular person or a family is governed by Mitakshara Law or not can be proved. (1) By proving instances of succession in the family according to Mitakshara Law after its migration and (2) By evidence relating to ceremonies performed in the family at marriages, births and Shraddha. [Subimal Kumar Maity & Ors
-Versus Jhareswar Maity & Anr. Calcutta High Court – March 06, 2019]

 


Pale of Karta

It is true that a coparcener takes by birth an interest in the ancestral property, but he is
not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted and it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot
interfere in these acts of management. Apart from that, a father-karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a
right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property. The above principle relating to the rights of karta in management of ancestral joint property vis-a-vis the right and interest of the coparcener has been laid down by the Hon’ble Supreme
Court in Sushil Kumar & Anr vs. Ram Prakash & Ors reported in AIR 1988 SC 576.

Determination of mesne profits in the partition suit

In AIR 1989 NOC 74 (Mad) (Krishnamurthi v. Gopal Gounder), Ratnam, J. considering a case of determination of mesne profits in the partition suit observed thus : —

“In a suit for partition, the mesne profits with reference to the properties forming the subject-matter of the suit, and referable to the properties, eventually allotted to the share of the successful party form part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves and it would be most inequitable and unjust that despite a preliminary decree directing the ascertainment of mesne profits, the successful party should be driven to institute another suit separately for the mesne profits and it is certainly not the policy of the law to encourage multiplicity of proceedings. It is the duty of the Court not only to divide the several items of properties, but also the mesne profits derived therefrom, for the profits derived are also in the nature of property liable to be divided between the sharers. Viewed thus, in instant case, in the final decree that had been passed, there had been an omission to recognise the right of the petitioners herein to mesne profits, in which also they would be entitled to a share, as if that also formed part of the properties available for division. The circumstance that a final decree had been passed without reference to the relief of mesne profits granted under the preliminary decree, would not justify the refusal of the relief of ascertainment of mesne profits according to the terms of the preliminary decree. It is open for Court to ascertain same and pass the final decree.”

Effect of death of a party after passing preliminary decree involving question of share in partition suit

Variations or changes in the shares on account of death of party/parties and other developments after the decree affecting the rights and liabilities of the parties can be determined if necessary by passing further preliminary decree or if no complicated questions are involved, the matter can be decided in the final decree proceedings itself.Continue Reading

What is the period of limitation for execution of preliminary decree for partition.

In our opinion 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. 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. 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.Continue Reading

Property ceases to be joint immediately the shares are defined

In Fatechand Mahesri And Ors. vs State Of West Bengal And Ors, Calcutta High Court[ AIR 1972 Cal 177, 76 CWN 137] held :

 

It is well established rule of law that according to true notion of an undivided Mitakshara family, no individual member of that family, whilst it remains undivided, can predicate of the joint property that he — that particular member — has a certain definite share, one-third or one-fourth. Partition according to that law, consists in a numerical division of the property; in other words, it consists in defining the shares of the coparceners in the joint property; an actual division of the property by metes and bounds is not necessary. Once the shares are defined, whether by an agreement between the parties or otherwise, the partition is complete. After the shares are so defined, the parties may. divide the property by metes and bounds, or they may continue to live together and enjoy the property in common as before. But whether they do the one or the other, it affects only the mode of enjoyment, but not the tenure of the property. The property ceases to be joint immediately the shares are defined, and thenceforth the parties hold the property as tenants-in-common (See Mulla’s Hindu Law, 13th Edition. Article 322 page 372).

Partition is a severance of joint status and all that is necessary to constitute partition is a definite and unequivocal indication of the intention of a member of a joint family to separate himself from the family and enjoy his share in severality. But this intention has to be communicated to the other members of the family. In Raghavamma v. Chen-chamma, , the Supreme Court has held that there should be an intention, indication or representation of such intention and that what form that manifestation should take would depend upon the circumstances of each case.

IN CASE OF SALE TO A THIRD PARTY

Supreme Court In Sidheshwar v. Bhubneshwar[1953 AIR 487, 1954 SCR 177] Mukherjea. J. observed as follows:–

“The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.