In Partition Suit, Every Interested Party Deemed To Be A Plaintiff; No Bar In Passing Numerous Preliminary Decrees: Supreme Court

In a recent development, a Division Bench of the Supreme Court, made an important observation that in a suit for partition, every interested party is considered to be a plaintiff. Further, law does not prohibit passing of numerous preliminary decrees.

“Admittedly, we are dealing with a suit for partition, in which every interested party is deemed to be a plaintiff. Law does not bar passing of numerous preliminary decrees.”

A Bench, comprising Justices M.M. Sundresh and Prashant Kumar Mishra, made these above observations while adjudicating an issue pertaining to the application of Section 10 (stay of suit) of the Code of Civil Procedure (CPC), in a partition suit where preliminary decree was sought when the trial in a similar case was already pending.

The present special leave petition (SLP) was filed assailing the judgment of the High Court of Kerala which confirmed the supplementary preliminary decree granted in favour of appellant’s sisters (respondents No.1 and 2).

Brief Background

A suit for partition was filed, on the first occasion, in O.S. No.205/1994 in which the petitioner/ appellant was arrayed as a defendant. The preliminary decree passed in the said suit became final as against the petitioner herein. However, two of his sisters were not arrayed as parties. An attempt made by them subsequently during the final hearing of the proceedings, did not yield any fruit.

Thereafter, they filed an independent Suit in O.S. No.47/2014 seeking partition. During the pendency of the said suit, they filed an application seeking yet another preliminary decree in the earlier suit against the petitioner. Accordingly, a supplementary preliminary decree was passed, which, in turn, is confirmed under the impugned order. Challenging the same, the present SLP was filed.

Appellant’s Contentions

Counsel, appearing for the petitioner, submitted that the mandate of Order XLI, Rule 31 of the CPC has not been complied with. It was further argued that having filed a separate suit in the year 2014, the separate application is hit by Section 10 of the CPC.

Counsel also averred that both the Courts, have not taken into consideration the fact that the impleadment application filed by the contesting respondents was dismissed. Reliance was placed on Malluru Mallappa (Dead) Through Legal Representatives v. Kuruvathappa and Others, (2020) 4 SCC 313 and Somakka (Dead) by Legal Representatives v. K.P. Basavaraj (Dead) by Legal Representatives, (2022) 8 SCC 261, for the aforesaid arguments.

Court’s Observations

After examining impugned order and the preliminary decree passed by the Trial Court, the Apex Court observe that Order XLI, Rule 31 of the CPC has been complied, inasmuch as adequate reasoning has been rendered by the High Court. It went on to hold that that the High Court has considered the contentions on merit and, therefore, dealt with the issues involved.

Moving forward, the Court refused to accept the appellant’s contention regarding the application of Section 10 of the CPC. Elucidating the same, Court held:

“The fact that the applicants are the sisters of the petitioner is not in dispute. In such view of the matter, they ought to have been arrayed as defendants in the main suit itself. The dismissal of the application during the final hearing proceeding has got no bearing on the application filed seeking yet another preliminary decree. Both the Courts had rightly disbelieved the unregistered wills executed in favour of the petitioner ignoring the two daughters.”

In view of the same, the Court dismissed this SLP.

Case Title: A. KRISHNA SHENOY v. GANGA DEVI G. & ORS, Petition(s) for Special Leave to Appeal (C) No(s). 8080/2019

Citation : 2023 LiveLaw (SC) 778

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