Laxmin (Bai) (Smt.) vs Khageshwar Singh and Others

T.P. Sharma, J.—By this second appeal present appellant has challenged the legality and propriety of the judgment and decree dated 18-12-2001 passed by Second Additional District Judge, Raigarh, in Civil Appeal No. 12-A/99, affirming the judgment and decree dated 5-1-98 passed by the Civil Judge Class I, Sarangarh in Civil Suit No. 52-A/97 whereby learned Civil Judge Class I has partly decreed the suit of the respondent No. 1 lor declaration, partition and separate possession.

Learned Counsel for the appellant has assailed the judgment and decree impugned on the ground that Court below has not considered the law that preliminary decree for partition of the immovable property is sine qua non and when will effecting the propriety not owned by the person is void ab initio.

The brief facts of the case are that mother-in-law of the present appellant Sulochana has executed the Will of suit property on 22-10-2006. She died in the year 1991, after the death of Sulochana the present appellant has illegality mutated her name upon the entire property specially property in dispute thereafter a Revenue Case was filed and decided ultimately suit for declaration, title and possession in alternate of the partition of j of share was filed by the respondent No. 1. After affording the opportunity of hearing learned Civil Judge Class I has partly decree the suit and declaration. The respondent No. 1 as an owner of the of the share of the property in dispute and decree for partition and possession same was affirmed in civil appeal impugned.

Shri M.K. Bhaduri, Advocate for the appellant, Shri A.K. Athley, Advocate for the respondent No. 1 and Shri Rajendra Tripathi, Panel Lawyer for the State are heard.

Judgment, decree impugned and records of Courts below perused.

Learned Counsel for the appellant argued that Sulochana and present appellant who were mother-in-law and daughter-in-law were joint owner of the property. Deceased Sulochana was not competent to bequeath the properly in favour of any third person. She has not bequeathed the property. Respondent No. 1 has failed to prove any evidence to prove the Will after death of Sulochana only appellant the sole successor of the deceased Sulochana has succeeded the property in dispute u/s 16 of the Hindu Succession Act, 1956, even otherwise Will of joint property not separated by meats and bounds or not legal no suit can be decreed on the basis of such Will deed. In case of partition and separate possession of the immovable property preliminary decree is sine qua non and further submits that for decision of second appeal the following substantial questions of law would be necessary:

(i) Whether the decree for partition of the immovable property preliminary decree is necessary?

(ii) Whether the deceased Sulochana was competent to bequeath the Undivided Hindu Family property?

On the other hand, judgment and decree is supported on behalf of the Counsel for the respondent and submits that in case of partition of revenue paying land no preliminary decree can be passed and after passing of decree for declaration of share, the Courts become "functus officio" deceased Sulochana has bequeathed the property of her share and the share of the appellant but the Court below has decreed the suit for � share belonging to deceased Sulochana. The Court below has not committed any illegality. No substantial questions of law involves in this case.

Judgment and decree impugned, records of Court below, judgment and decree of the Trial Court perused. The undisputed facts of the case reveals that the present appellant and her mother-in-law deceased Sulochana were joint owner of the suit property during her life time deceased Sulochana has bequeathed the entire disputed property of respondent No. 1 after the death of Sulochana present suit was filed.

Learned Trial Court after appreciating the material and evidence adduced on behalf of the parties arrived at a finding that present appellant and her mother-in-law were joint owner of the property and mother-in-law of the deceased Sulochana was competent to bequeath her share, i.e., share, therefore, the Will executed by the deceased Sulochana was valid up to the extent of her share, i.e � share of the disputed property and partly decreed the suit and also directed that partition be effected by the Collector property dispute is estate assessed to the payment of revenue to the Government.

The declaration of the � share of the respondent No. 1 on the basis of evidence is just and proper and no interference is called for. Court below has only declared � share of the respondent No. 1 on the basis of registered Will deed admittedly proved by the parties.

As regard the nature of decree, Le., whether it would be preliminary or final is concerned the property in dispute is an undivided estate assessed to the payment of revenue to the Govt. specially provisions has been made in Rule 18 of Order 20 and Section 54 of the Code of Civil Procedure, 1908 (in short ''the Code'') and Section 54 of the Code, which reads as under:

Partition of estate or separation of share. Where the decree is for the partition of an undivided estate assessed to the payment of revenue to 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 subordinate 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.

Order 20 Rule 18 of the Code reads as under:

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 any 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.

In case of declaration of share relating to the estate assessed to the payment of revenue to the Government the partition of the suit or the separation of the share shall be made by the Collector in accordance with the provisions of Section 54 of the Code and Court are required to drawn up the decree in accordance with Order 20 Rule 18 of the Code and after declaration of the share and sending the decree for effecting the partition u/s 54 of the Code as held in case of Bhagwan Singh Vs. Babu Shiv Prasad and Another, , the Civil Court becomes functus officio, while dealing with the same question in case of Khemchand Shankar Choudhari and Another Vs. Vishnu Hari Patil and Others, , Apex Court has held that the Collector is only competent to effect the partition and Collector is not required to return the papers even if in the decree the decree was written as preliminary decree. The Court below has rightly passed the decree in accordance with Order 20 Rule 18 of the Code and same was sent for effective partition in accordance with Section 54 of the Code no any substantial question of law involves in the present second appeal therefore, the appeal is liable to be dismissed and it is hereby dismissed.

Parties shall bear their on costs.

Advocate fee as per schedule.