The High Court dismissed a writ petition challenging an order refusing to reopen final decree proceedings in a partition suit. The Court held the petitioners' conduct amounting to abuse of process justified the dismissal and imposed costs.
Writ petition dismissed with costs of Rs. 50,000 payable to the respondent/decree holder.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO.70 OF 2019 (GM-CPC)
BETWEEN:
Digitally signed by MEGHA MOHAN
Location: HIGH COURT OF KARNATAKA
ALL ARE R/AT KURUBARAHALLI VILLAGE JANGAMAKOTE HOBLI SIDLAGHATTA TALUK CHIKKABALLAPURA DISTRICT
…PETITIONERS
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AND:
CHIKKABALLAPURA DISTRICT-563125
BANGALORE DISTRICT-560 064
…RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE ORDER DATED 19.06.2018 PASSED BY THE LEARNED SENIOR CIVIL JUDGE & J.M.F.C., SHIDLAGHATTA, IN MIS.NO.02/2018, AS PER ANNEXURE-G.
THIS PETITION, COMING ON FOR DISMISSAL, THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Aggrieved by the order dated 19.06.2018 passed in Misc.No.2/2018 by the Court of Senior Civil Judge and JMFC at Shidlaghatta, whereby the trial Court had dismissed the application filed under Order XX Rule 18 of CPC for reopening of FDP.No.8/1994, the applicants therein are before this Court.
herein have purchased the property by way of registered
sale deed dated 03.05.1990 from respondent No.2. Respondent No.2 is the vendor of said Krishnappa and Lakshmana. Respondent No.1 had filed O.S.No.74/1989 seeking partition and separate possession of the suit property. The said suit came to be decreed on 15.04.1993. The said Krishnappa purchaser of the property was placed exparte and decree was passed awarding 1/7th share each. Against that, Krishnappa filed appeal in R.A.No.28/1998 challenging the preliminary decree and the said appeal came to be dismissed on 10.07.2001. Against the said
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judgment and decree, Krishnappa filed RSA.No.735/2001 before this Court and the said appeal was dismissed on 01.08.2003 with a liberty to file an appeal against the final decree. It is their case that the Court had passed the final decree on 12.07.2008 by determining and identifying the share of one of the party and it has not determined or identified the shares of other family members and having drawn the final decree without completing the process, it is impermissible in law. Unless and until, the parties are identified to put them in possession, the final decree proceedings cannot be completed. The order passed in the final decree proceedings is illegal as shares of the purchasers are not allotted to Krishnappa under final decree proceedings which is neither in conformity with the procedure nor valid in the eyes of law.
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of land. The Trial Court had considered the case of the applicants right from the day when the father of these applicants was set exparte. Court has also considered the fact that liberty is given to them to question the final decree proceedings. The Court has observed that the petitioners have filed this petition after 10 years of passing of the final decree. The petitioners have not explained the reasons of delay in filing petition for reopening of FDP.No.08/1994 and they have not even produced final decree passed in FDP.No.08/1994. The Court had observed that it cannot go beyond the orders of the High Court, wherein in RSA.No.735/2001 the liberty is given to file an appeal against the final decree. Neither Krishnappa nor his legal representatives have filed an appeal against final decree and this application cannot be entertained.
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vendor. When such a limited exercise has to be done by the Court, the Court below ought to have reopened the final decree proceedings and considered the case of the petitioners as per the share of their vendor and the properties purchased by them. The Court below without considering all this on the ground that the final decree proceedings are closed had dismissed the application.
KARAN BUBNA ALIAS SHUB KARAN VS. SITA SARAN BUBNA
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AND OTHER1 . Basing on the said judgment, the learned Senior counsel submits that the Hon'ble Apex Court has dealt with what is a preliminary decree and final decree and what are that aspects that have to be dealt with in a final decree. Further, he had particularly relied on para Nos.21 and 22 of the aforesaid judgment, which reads as under:
"21. 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.
22. 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."
1 (2009)9 SCC 689
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Hon'ble Apex Court in the case of S.SAI REDDY VS.
S.NARAYANA REDDY AND OTHERS2 . Particularly, on para No.7 of the said judgment, it reads as under:
"7. The question that falls for our consideration is whether the preliminary decree has the effect of depriving respondents 2 to 5 of the benefits of the amendment. The learned counsel placed reliance on clause (iv) of Section 29-A to support his contention that it does. Clause (ii) of the section provides that a daughter shall be allotted share like a son in the same manner treating her to be a son at the partition of the joint family property. However, the legislature was conscious that prior to the enforcement of the amending Act, partitions will already have taken place in some families and arrangements with regard to the disposition of the properties would have been made and marriage expenses would have been incurred etc. The legislature, therefore, did not want to unsettle the settled positions. Hence, it enacted clause (iv) providing that clause (ii) would not apply to a daughter married prior to the partition or to a partition which had already been effected before the commencement of the amending Act. Thus if prior to the partition of family property a daughter had been married, she was disentitled to any share in the property.
2 (1991)3 SCC 647
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Similarly, if the partition had been effected before September 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried was not given a share in the family property. The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of
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benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits.
8. Hence, in our opinion, the High Court has rightly held that since the final decree had not been passed and the property had not been divided by metes and bounds, clause (iv) to Section 29-A was not attracted in the present case and the respondent-daughters were entitled to their share in the family property."
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counsel for the petitioners submits that the court below
had failed to exercise the jurisdiction, the scope of the final decree proceedings, right of the subsequent purchaser and about his share in the properties. Thus, the order under revision is liable to be set aside.
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Thereafter, he got himself impleaded in the suit. As he failed to contest, the father of the plaintiff was placed exparte and an exparte judgment and decree was passed on 15.04.1993. Against that, regular appeal was filed in the year 1998 by the father of the petitioners herein challenging the preliminary decree. That also came to be dismissed on 10.07.2001. Then they have filed RSA.No.735/2001. As the final decree proceedings were concluded in the year 1998, liberty was given to question the final decree proceedings and accordingly, second appeal was dismissed by judgment dated 01.08.2003.
be filed under Order XX Rule 18 R/w 151 of CPC for reopening the final decree proceedings and the same was dismissed by the Court by order impugned dated 19.06.2018. Thereafter, the petitioners have come before this Court. On 14.01.2019 Co-ordinate Bench of this Court had passed an order of status quo with regard to the properties in question. Now it is their case that as the final
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decree proceedings are reopened on an application by some third parties, the petitioners shall also be permitted to contest the matter.
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decree proceedings. When the same was dismissed, they approached this Court and obtained an interim order. For more than three years, it is pending before this Court.
a ground for this Court to pass any order, that too in favour of a litigant, who has failed to question the final decree proceedings inspite of a liberty granted in a second appeal.
3 (2014) 8 SCC 470
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Indian judicial system is grossly afflicted with frivolous litigation and a mechanism needs to be evolved to deter the litigants from their compulsive obsession towards senseless and ill-considered claims.
16. Under the pretext of exercising their remedies,
parties are approaching the Courts and stalling the proceedings. Ultimately, a party who has succeeded before hierarchy of Courts is still not able to enjoy the fruits of the decree. The manner in which the litigation is pursued strikes the conscious of any prudent men. Even after 26 long years of proceedings, it could not attain finality. This kind of litigation has to be curbed by the Courts. The Courts have to impose costs and the litigants who are indulging in frivolous litigation should be afraid of the consequences. The practice of this kind of litigants appears to be that as they have the means to approach the Court. Dilatory tactics are adopted with the object of protracting the proceedings. In the process, the opposite side may be vexed with the litigation and compromises
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with them. The present petition is by such litigants who are abusing the process of Court and a fit case for imposing cost, whereby a loud and clear message is sent to the frivolous litigants.
order:
ORDER
i. Writ petition is dismissed with costs of Rs. 50,000/-. The amount shall be paid to the respondent/decree holder within four weeks from the date of receipt of the copy of the order.
ii. All I.A's in this writ petition shall stand closed.
SD/JUDGE
SSB
3 issues framed by the court
Whether the Court should reopen final decree proceedings in a partition suit filed by purchasers after a long delay despite earlier liberty to question the decree.
Whether a purchaser who failed to appeal the initial decree without explanation can challenge the final decree proceedings years later.
Whether the High Court possesses the power to entertain a writ petition when the underlying suit faces charges of prolonged delay and abuse of process.
Colour shows how this judgement treated each authority
SHUB KARAN BUBNA ALIAS SHUB KARAN VS. SITA SARAN BUBNA AND OTHERReferred¶60
(2009)9 SCC 689 · Who else cites this
S.SAI REDDY VS. S.NARAYANA REDDY AND OTHERSReferred¶67
(1991)3 SCC 647 · Who else cites this
SUBRATA ROY SAHARA VS. UNION OF INDIAReferred¶100
(2014) 8 SCC 470 · Who else cites this
2 provisions across 2 enactments
SRI J. K. MUNIVENKATARAMANAPPA S/O LATE KRISHNAPPA
SRI J K MUNIYAPPA S/O LATE KRISHNAPPA
SRI MUNISHAMI S/O LATE KRISHNAPPA
SRI RAMU S/O LATE KRISHNAPPA
SRI LAKSHMANA S/O LATE KRISHNAPPA
SMT PADMAVATHAMMA W/O C S ANJANEYALU
LALITHA KANNEGANTI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
