The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.139 of 2025 Chabi Majhi Petitioner …. Ms. P.S. Mohanty, Advocate -Versus- Sabitri Majhi & others …. Opposite Parties None CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 18.02.2025 Order No. 01. 1. 2. Heard Ms. Mohanty, learned counsel for the petitioner. No notice is issued to the opposite parties, as the matter is disposed of at the stage of admission. 3. Instant petition is filed by the petitioner challenging the correctness of the impugned order dated 3rd October, 2024 under Annexure-6 passed in connection with C.S. No.1134/1767 of 2017-1 by learned Senior Civil Judge, Balasore, whereby, an application seeking modification of the preliminary decree filed by her as per and in terms of under Order 20 Rule 18 CPC read with Section 97 C.P.C. has been declined. 4.
Legal Reasoning
regard to the changed situation. We are fortified in our view by a 3- Judge Bench decision of this Court in the case of Phoolchand and Another Vrs. Gopal Lal AIR 1967 SC 1470 wherein this Court stated as follows: "We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented... So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; … there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility… for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties…a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree..." Page 4 of 7 20. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule 18 of the C.P.C. In a suit for partition of immovable property, if such property is not assessed to the payment of revenue to the government, ordinarily passing of a preliminary decree declaring the share of the parties may be required. The court would thereafter proceed for preparation of final decree. In Phoolchand1, this Court has stated the legal position that CPC creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings.” 7. In the above decision, it has been held that a preliminary decree determines the right, title and interest between the parties and the suit is not disposed of till a final decree is drawn up in respect of the immovable property sought to be partitioned by metes and bounds. It is concluded therein that after passing the preliminary decree, the suit continues until the final decree is passed and in the interregnum, after such a decree and before a final decree is drawn up, for any such supervening circumstances necessitating change in shares, modification of the same is permissible. 8. Being alive to the legal position discussed herein above, this Court is to find out and ascertain the reason as to why the Page 5 of 7 modification of the preliminary decree was declined under Annexure-6 and upon perusal of the same, it is revealed that the same is assumed to be on account of want of competence or absence of jurisdiction. 9. In fact, learned court below has taken judicial notice of the decision of Ganduri Koteshwaramma (supra) but reached at a conclusion otherwise with a finding that it has no powers to modify the preliminary decree. In view of the case law cited, as a suit continues to remain even after a preliminary decree till a final decree is drawn up and hence, modification of such decree to be permissible, it is to be concluded that learned court below did not correctly appreciate the law in place and passed the impugned order i.e. Annexure -6 on the premise that it lacks jurisdiction. In other words, the Court is of the view that a court dealing with the suit even after passing of a preliminary decree does have the vested powers to modify the decree before the final decree is drawn. Having said that, the Court is of the final view that the impugned order under Annexure-6 in C.S. No.1134/1767 of 2017-1 by learned Senior Civil Judge, Balasore cannot be sustained in law and therefore, a direction is required to be issued to the learned Court below to consider the modification of the preliminary decree in terms of Order 20 Rule 18 CPC under Annexure-5 and to pass necessary order in accordance with law. 10. Accordingly, it is ordered. 11. In the result, the petition stands allowed. As a necessary corollary, the impugned order under Annexure-6 in C.S. No.1134/1767 of 2017-1 by learned Senior Civil Judge, Balasore is hereby set aside with a direction to consider modification of the preliminary decree before a final decree is drawn up therein entertaining the application under Order 20 Rule 18 read with Page 6 of 7 Section 97 CPC as at Annexure-5 and to pass an order as per and in accordance with law. 12.
Arguments
Recorded the submission of Ms. Mohanty, learned counsel for the petitioner, which is to the effect that modification of the preliminary decree is permissible, inasmuch as, Section 6 of the Hindu Succession Act as amended in 2005 is retrospective in nature. The submission of Ms. Mohanty, learned counsel for the petitioner that the preliminary decree in view of Section 6 of the Hindu Succession Act is ought to have been modified instead of being rejected vide Annexure-6 and advancing such an argument, a Page 1 of 7 decision of the Apex Court in Ganduri Koteshwaramma & Another Vrs. Chakiri Yanadi & Another 2011 (II) CLR (SC) 970 is referred to. 5. Perused the plaint, a copy of which is at Annexure-1 and the suit was for partition and permanent injunction with a declaration regarding a compromise decree in C.S. No. 1079 of 2010 to be void. The petitioner as defendant No.12 filed W.S. and ultimately, upon disposal of the suit, a preliminary decree dated 13th June, 2019 was passed, which was sought to be modified demanding a share in view of Section 6 of the Hindu Succession Act. In fact, an application in terms of Order 20 Rule 18 read with Section 97 CPC was filed by the petitioner seeking such modification in the preliminary decree but it was followed by the impugned order at Annexure-6. 6. Law is well settled that Section 6 of the Hindu Succession Act has a retrospective effect, which is held and concluded by the Apex Court in Vineeta Sharma Vrs. Rakesh Sharma & others (2020) 10 SCR 135. In so far as the modification of the preliminary decree as per Annexure-5 is concerned, it was moved by the petitioner as one of the daughters having equal share. The Apex Court in Ganduri Koteshwaramma (supra) held the same to be permissible. For better appreciation, the Court is inclined to reproduce the relevant extract of the decision in the above cited case law, which is hereunder: ”15. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub- section (1) of Section 6. The excepted categories to which new Section 6of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) Page 2 of 7 where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for 8 doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004. For the purposes of new Section 6 it is explained that ‘partition’ means any partition made by execution of a deed of partition duly registered under the Registration Act,1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non- applicability of the Section, what is relevant is to find out whether the partition has been effected before December 20, 2004 by deed of partition duly registered under the Registration Act,1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the appellants of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed. xxx xxx xxx 17. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having Page 3 of 7
Decision
In the circumstances, however, there is no order as to costs. 13. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC, CTC Date: 19-Feb-2025 18:28:08 Page 7 of 7