 And as we start this session on all the parts, we have done already three sessions on the partition suits. And today we are discussing up on the final decree in the partition suits. And the speaker for today is Mr. Esar Somashekar, a former district judge, principal district judge from Bangalore. And his all previous sessions, not only on the partitions, but the other sessions have also done extremely well. That only shows us that the way he teaches us, the way he takes things forward, are always well received amongst the participants who are watching us live, not only on this platform, but also on YouTube and Facebook. Before we will request Mr. Somashekar, we will again request that continue to maintain social distancing, keep on wearing your mask, as well as do your vaccination and do not go out of the home until unless it's very official. And as you all know that we have shared the topic and the today's topic is final decree proceedings in partition suits. And over to you, sir. It's a pleasure connecting with you. Thank you. Good evening, Mr. Vitash Chetrat and good evening, friends. The topic for discussion this evening is final decree proceedings in partition suits. Please focus on the title. You are able to hear me? Please focus on the title. Final decree proceedings in partition suits. It contemplates three things. There is already a preliminary decree. Therefore, a proceeding is now initiated for drawing a final decree. That there is a different kind of a proceeding as far as a partition suit is concerned when it comes to final decree. Those of you who have put in at least one year of practice would have by now known that there is practically no difference in the trial procedure in respect of different kinds of suits, except a slight modification regarding section six of the suit under section six of the specifically fact are summary suits under R37. In respect of all other suits, be it a suit for recovery of money, specific performance, declaration, invention, or whatever it is, there is absolutely no difference in the procedure when it comes to the suit, trial of a suit. But in the case of final decree, there are different procedures. Before I tell you what actually the procedure in a final decree proceeding in a partition suit, I would for the benefit of the younger members of the bar, read for myself and request them also to go through the explanation to section two, subsection two of the court of steel procedure. Section two, subsection two defines what a decree is. Kindly go to the explanation. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. If it is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final. Therefore, a decree could be preliminary, there a final, it could be partly preliminary and partly final. During the course of the presentation, you will yourself realize as to when a decree could be partly preliminary and partly final. Let me not waste time right now on that. Now, when the statute itself says that a decree could be preliminary, obviously it means at least in certain suits, a preliminary decree is passed followed by a final decree. Though I am conscious of the fact that we are discussing about final decree proceedings in partition suits, for the benefit of the young advocates, I would just like to tell them in whatever kinds of suits, a preliminary decree is passed followed by a final decree. Please go to order 20 CPC. Order 20 has this as its title, judgment and decree. Go to order 20 rule 12. Decree for possession and mean profits, whereas suit is for the recovery of possession of immobile property and for rent or mean profits, the court may pass a decree for the possession of the property, B for rents which have been thrown on the property during the period prior to the institution of the suit, B for the mean profits, directing an inquiry as to such mean profits, directing an inquiry as to rent or mean profits from the institution of the suit until the delivery of possession. Therefore, though the world preliminary decree is not used or final decree is not used, order 20 rule 12 contemplates a decree where you pass a preliminary decree and give a direction to the defendant to deliver possession. If it is a question of future mean profits, then it is during final decree proceedings what exactly is the future mean profits to which the plaintiff is entitled to be determined. Then go to order 20 rule 13, where a suit is for an account of any property and for its due administration under the decree of the court, the court shall before passing the final decree pass a preliminary decree ordering such accounts. So in administration suits also two degrees are contemplated. Then go to order 20 rule 15, decree in a suit for dissolution of partnership whereas suit is for the dissolution of partnership or the taking of partnership accounts before passing a final decree may pass a preliminary decree. Then order 20 rule 16 in a suit for an account of pecuniary transactions between a principal and an agent and in any other suit not hearing before provided for where it is necessary in order to ascertain the amount of money due or from any party that an account should be taken the court shall before passing its final decree pass a preliminary decree. Then order 20 rule 18, this is a decree in a partition suit. This is what we are discussing today. Please carefully read it. Where the court passes a decree for the partition of property or for the separate possession of a share therein if and in so far as the decree relates to an estate assess to the payment of revenue to the government the decree shall declare 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 hesitate subordinate of the collector deputed by him in this behalf in accordance with such declaration and with the provisions of section 54. Karnataka has brought an amendment to order 20 rule 18 sub rule 1. I am not aware whether other states in the country have brought about a similar amendment. Experience was when proceedings were rather warrant was sent to the deputy commissioner we call the collector in Karnataka as deputy commissioner for affecting a partition of lands assess to land revenue the proceedings took a good lot of time and nothing could have been done. Therefore the literature thought that there should be an amendment to order 20 rule 18 and those of you who have the benefit of having the Karnataka amendment will kindly go to order 20 rule 18 as amended by the Karnataka state literature Karnataka High Court amendment or 20 rule 18 sub rule 1 as amended by the Karnataka High Court if and in so far as the decree relates to an estate assess to land revenue to the government the decree shall declare the rights of the several parties interested in the property and such partition or separation shall be made by the court in accordance with such declaration and section 54. Central Act says it shall be made by the collector here with all the deputy commissioner but the Karnataka amendment is the court itself shall make such a division. A similar amendment is brought to section 54 CPC first we shall read the central amendment as it is to go to section 54 CPC partition of estate or separation of shares where the decree is for the partition of an undivided estate assess 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 shares shall be made by the collector or any hesitate subordinate of the collector deputed by him in this behalf in accordance with the law if any for the time being enforced relating to the partition or the separate possession of shares of such a state almost similar to order 20 rule 18-1 let us see the Karnataka amendment to section 54 CPC I am reading Karnataka amendment to section 54 where the decree is for the partition of an undivided estate assess 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 of such an estate shall be made by the court in accordance with the law shall be made by the court in accordance with the law therefore both section 54 and order 20 rule 18 sub rule 1 contemplate a division by the court itself but section 54 further provides the Karnataka amendment and if necessary under the court as a revenue officer not below the rank of a kahashildar or such other person as the court may appoint as permission in this behalf therefore normally the court would appoint some revenue officer not below the rank of a kahashildar or any other person usually survey is appointed not to affect the division but to give a report to the court to see as to how well the court can actually divide the properties just as in the case of other removal properties or unborn properties this is the position I will read order 20 rule 18-1 as amended 20 rule 18 sub rule 1 contemplates a decree in respect of lands access to land revenue you will find that the world preliminary is not used anywhere in sub rule 1 of order 20 rule 18 if funding so far as the decree relates to an estate access to the payment of etc the decree shall declare the rights of the several parties interested in the property shall direct such partition or separation to be made by the collector why it is so before section 54 and order 20 rule 18 sub rule 1 came to be amended by ternadka or elsewhere also there will be a similar amendment the legal position was and probably it continues to be so in other states where there is no such amendment the civil court passes the decree declaring the shares of the several parties thereafter the decree is sent to the collector or the deputy commissioner for affecting the division by meets and don'ts the civil court thereafter becomes fungus official thereafter becomes fungus official now let us see 20 rule 18 sub rule 2 if funding so far as such decree relates to any other removal property or mobile property the court may if the partition or separation cannot be conveniently made without further inquiry pass a primary decree declaring the rights of the several parties interested in the property and given such further directions as to be required I am not going into details of division of a mobile property that is any other removal property a site or a house property here what we do is a preliminary decree is passed declaring the rights of several parties then if without further inquiry actually the court the court cannot come to the conclusion whether the property can be conveniently divided or not well advocates who have put in some practice at least for five years or four years would have by no known during the course of trial focus is only on establishing the relationship between the parties if that is denied by the defendants nature of the property whether it is giant family property ancestral property self acquisition separation all that and what is the share to which the plaintiff and the defendants are entitled not much of a focus is given about the convenience or otherwise the visibility or otherwise the property to be divided by means and forms normally focus is not there therefore without further inquiry the court cannot come to a conclusion whether it could be divided by means and forms and therefore that enquiry is done during the course of final degree proceedings this is the situation now I said the court widens focus of issue here again I am not sure about the provisions in the local land revenue loss in Karnataka we have the Karnataka land revenue act of 1964 section 49 of the Karnataka land revenue act provides for appeals from original owners save as otherwise expressly provided an appeal shall lie from every original owner passed under this act are the rules made there under and from every owner made in exercise of the powers confirmed by section 54 of the code of civil procedure that means when a preliminary decree was sent to the collector then if some order was passed by the revenue authority in a proceeding under section 54 CPC well an appeal was provided under the act itself to the various authorities there under this is the situation therefore the view that was taken by the Karnataka high court long back was when once the preliminary decree was sent to the deputy commissioner for affecting a division of a land assist to land revenue the civil court became fantastic issue if any order was passed by the revenue authority during those proceedings an appeal could be preferred under the provisions of the land revenue act so nothing more was required to be done it was only in respect of the other types of immobile properties house properties, buildings, sites etc the civil court was required to do this now of course in the amendment to section 54 CPC even in respect of plans assist to the land revenue the civil court is expected to make a division this is the now please go to section 74 I am sorry 75 75 power of the court issue commission subject to such conditions and limitations has to be prescribed the court may issue a commission for various purposes deep to make a partition the court may issue a commission to make a partition subject to conditions and limitations has to be prescribed the word prescribed is also defined in section 2 prescribed means prescribed means prescribed by the rules rules is also defined where do we get it, 280 rules means rules and forms contained in the first schedule are made under section 122 or 125 first schedule contains the order portion of the civil procedure court therefore in accordance with the rules contained in the order portion of the civil procedure court the corresponding order as far as section 75 is concerned as many of you may be knowing is order 26 let us go to order 26 there you find different sub heads commission to examine witnesses commission for local investigation commission for scientific investigation commission to examine accounts thereafter you have this commission to make partitions there you have two rules rule 13 and rule 14 I will read rule 13 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 so this is a further indication that in respect of lands assist to land revenue the question of the court affecting the division is not permissible except as I said because section 54 CPC is now amended or 20 rule 18 sub rule 1 is also amended in Karnataka it is possible for the court to affect a division even in respect of lands assist to land revenue now there is an amendment to order 26 rule 14 by the Karnataka I quote order 26 rule 14 the central act shows that there are three sub rules there sub rule 4 Karnataka I quote amendment where the court passes a final decree according to the foregoing provisions then in the case of estate assist to land revenue payable to government intimation shall be given to the deputy commissioner of the district who shall cause appropriate entries to be made in the revenue and survey reports so now let us read 20 rule 14 so 20 rule 26 rule 13 applies to lands assist to land revenue 26 rule 14 other property the commissioner shall after such inquiry has been becoming 26 rule 13 also does not refer to agricultural lands because it says except as provided by section 54 so therefore the procedure contemplated by rule 14 is in respect of urban property that is sites buildings the commissioner shall after such inquiry as to be necessary divide the property into as many shares as may be directed by the order under which the commission was issued and shall allot such shares to the parties and may if authorize it there too by the set order award sums to be paid for the purpose of equalizing the value of the shares the commissioner shall then prepare and sign a report or the commissioners where the commission was issued to more than one person and they cannot agree shall prepare and signs appropriately reports applied in the share of each party and distinguishing each share if so directed by the set order by beets and boats such report or report shall be annexed to the commission and transmitted to the court and report after hearing any objections which the parties may make to the report or reports shall confirm vary or set aside we say where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall complete here again though the world final decree is not used it means that the court confirms or varies the report or reports it shall pass a decree means it shall pass a final decree now I have already read section 54 CPC where do you find section 54 of the civil procedure code you will find it in part 2 of the civil procedure code with the title institution it starts from section 36 and ends with section 74 section 54 is placed there this is likely to mislead many of us whether a proceeding under section 54 CPC for division of lands assist to land revenue is a proceeding in execution I am not aware of any decision of the supreme court obviously I am not aware of decisions of other high court as far as the Tarnadaka high court is concerned we have two decisions many may be knowing that the state of Tarnadaka was earlier called the state of Mysore and obviously the high court of Tarnadaka was also called the high court of Mysore we have two decisions AER 1959 Mysore 233 AER 1959 Mysore 233 and AER 1965 Mysore 73 of course in the decision 65 59 has been followed 59 is of a division bench Honourable Justice K S Higre who later became a judge in the supreme court wrote the judgment on behalf of the division bench in the case reported in AER 1959 Mysore is largely upset perhaps the section 54 could not have placed anywhere else and therefore the legislature thought it fit to include it in the provisions where the execution proceedings are included merely because section 54 fights have placed there it cannot be said to be an execution proceeding the matter reached the high court of Mysore in a different situation what happened was in fact long after the preliminary decree was passed nearly 35 or 40 years after the preliminary decree was passed final decree proceedings were initiated it was contended on behalf of the dependent respondents that initiation of final decree proceedings 35 to 40 years after the preliminary decree was passed was barred by time the argument was section 54 CPC is included in that part of CPC where which deals with execution and therefore it is a proceeding in the nature of an execution has the limitation had then stood the limitation for initiating an execution proceeding was 3 years and therefore the final decree proceedings were barred by time the division went did not accept the contention and as I said it observed merely because section 54 finds a place in the group of sections related to execution it is not a proceeding in execution probably it could not have been placed anywhere else and therefore it has been put there further it was held by the division bench there is nothing like an application being filed for initiation of final decree proceedings this is the illegal position throughout there is it does not contemplate an application on the part of the plaintiff or even the defendant if he has also been given a share no application is contemplated for initiating final decree proceedings when no application is contemplated there is no question of limitation at all if at all an application is filed courts have said it is only a reminder to the court to do its duty the court cannot rest content with passing a preliminary decree it is its duty to see that a final decree is also passed in terms of the preliminary decree therefore it cannot expect any application on the part of the plaintiff it has to do its duty if at all such an application is filed it is only a reminder to the court to do its duty this is the consistent view taken by the Karnataka High Court and I have a judgment of the Supreme Court also written by Justice R.V. Raveendran and I think right now it is better I refer to the judgment so that our further discussion would go correctly please make a note of the judgment of the Supreme Court on this redact right away we will deal with that instead of going here and there the judgment of the Supreme Court referred to by me is reported in 2009 volume 9 SCC 689 2009 volume 9 SCC 689 in fact his lordship has said in a situation should come where there is no need there should be no need to number an execution proceeding separately or a final degree proceeding and all that the legislature should step in several directions have been given and ultimately it has been said there is nothing like an application being filed it is the duty of the court to do it his lordship has also said that in a partition suit is disposed of by way of a preliminary degree the court without waiting for the plaintiff to make an application for final degree should itself give a fits a day for taking steps for drawing the final degree this is what his lordship has said thus the application for final degree as and when made is considered to be an application a pending suit for granting the relief of division by mid set bounds so this is the view taken and it is a fairly long judgment and very enlightening judgment and I request all the participants to go through that judgment at your leisure again go back to the definition rather explanation given to section 2 subsection 2 a decrease preliminary then 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 partly preliminary and partly final now this distinction between preliminary degree and final degree has been explained by the supreme court in 2003 volume 10 SCC 200 2003 volume 10 SCC 200 final degree and final degree this is Renu Devi versus Mahendra Singh of course in para eight of the judgment at page 206 you will get this explanation regarding the difference between a preliminary degree and a final degree some passage from mullahs CPC has also been referred to please go through it you will get to know the concept of a preliminary degree say the final degree and the difference between the two as I said by reference to the division by decision of the Karnataka High Court in AIR 1959 Mysore 233 there is no question of the plaintiff filing an application for a final degree in a party in a final degree in a partition so please don't think that for other final degrees also no application is contemplated I forgot to mention that even in a market suit a preliminary degree followed by contemplated that is covered by R34 CPC there we have a limitation but as far as final degree in a partition suit is concerned no application is contemplated and therefore no question of limitation arises we have a subsequent judgment of the supreme court 2007 volume 2 SCC 355 2007 volume 2 SCC 355 there are nine of this judgment it is said that there is so period of limitation for initiation of final degree proceedings in the same decision at Para 7 it is said that in a given case a degree can be both preliminary and final this requires some explanation a degree can be both preliminary and final in a given case let us again read order 20 rule 18 where the court passes a degree for the partition of property or for the separate possession of a share therein if and in so far as the degree relates to an estate assessed to the payment of revenue to the government the degree shall declare the rights of the several parties interested in the property but shall direct such partition of separation to be made very collective 20 rule 18 sub root 2 says if and in so far as such degree relates to any other removal property or global property the court may if the partition or separation cannot be conveniently made without further inquiry passing preliminary degree supposing there is material for the court to say that the property is capable of being divided by meets and bounds and no further inquiry is called for in respect of those house properties certainly a final degree can be passed in respect of budgetary terms as well as revenue a preliminary degree can be passed so therefore there can a degree can be partly preliminary and partly final this is we find this statement in 2007 volume 2 SCC 355 the next concept which you should know is there can be more than one preliminary degree what does that mean there can be more than one preliminary degree AER 1967 Supreme Court 1470 AER 1967 Supreme Court 1470 this is a very famous decision full check versus full check versus Gopal law it is followed in many statements there can be more than one preliminary degree what does that mean please give me full attention to what I am telling plaintiff is declared to have one fourth share in the preliminary degree a degree is passed saying that the plaintiff is entitled to one fourth share let us say his mother was also a party to the suit and she was one of the defendants a suit was filed by the plaintiff against his mother brother sisters and all that let us say he was held entitled to one fourth share in the suit schedule properties preliminary degree was passed subsequent to the death of the subsequent to the passing of the preliminary degree the mother dies as a consequence of the death of the mother the share of the plaintiff as well as the share of the remaining defendants gets enhanced therefore the court the court dealing with his final degree proceeding can take note of the subsequent event and accordingly modify the preliminary degree and say that instead of one fourth the parties are now entitled to one third share it is perfectly permissible there is no need to file a separate suit the subsequent development can be taken note of the final degree proceedings and accordingly the preliminary degree can be modified here there are certain procedures here well there can be a formal amendment to the preliminary degree making the note of the submissions made by both the council in the order sheet of the final degree proceedings well it is admitted that subsequent to the passing of the preliminary degree one of the parties to the suit died here she was related to the remaining parties to the suit in a particular manner as a consequence of his or her death the share of the remaining parties gets enhanced to this extent and therefore the preliminary degree passed on such and such a day stands modified and it shall no read like this a note in the order sheet should be sufficient or a formal amendment to the preliminary degree also can be made it is only a question of procedure you need not worry so much about it but the fact remains that there can be more than one preliminary degree in the decision in 2007 to SCC 355 which I refer to in two different context from the point of limitation there is no limitation it can be both preliminary and final there is an observation that there can be more than one final degree though many of us are already familiar with this position in law that there can be more than one preliminary degree more than one final degree I am reading para 8 of the judgment in 2007 to SCC 355 there can be more than one final degree a degree may be partly preliminary and partly final what is this there can be more than one final degree how does it happen again go to order 20 rule 18 well there are other cultural lands assist to land revenue there are open properties right a preliminary degree is passed now during the course of final degree proceedings let us say a commissioner is appointed for division of the house property then a commissioner is appointed to assist the court for the division of agriculture lands assistance of the court as well as Karnataka itself elsewhere the warrant itself is sent to the deputy commissioner for affecting the division if there is no amendment to SCC now for the deputy commissioner to give a report in respect of those agricultural lands it may take quite some time therefore the parties may say the commissioner who is generally an engineer in respect of this house property who is appointed has already given his report the court paper uses report and pass a final degree as far as the house property is concerned and the proceedings may be pending in respect of the agricultural lands for which a separate report is required therefore in such a situation there can be two final degrees also please understand this it is in that sense probably the observation is made so a degree can be partly preliminary it can be partly final there can be more than one preliminary degree there can be more than one final degree I told you that subsequent to the passing of the preliminary degree if there is the death of any of the parties to be sued the court can take note of it and suitably modify the preliminary degree and hence be shared absolutely no difficulty about it but when once a preliminary degree is passed and there is no change in the circumstance like death or anything the court dealing with these final degree proceedings cannot go behind the preliminary degree I will tell like this now in the trial the parties took a stand plain view said that the properties are all joint family properties defendants said that certain properties are self acquired and certain properties are joint family properties the court did not accept their contention it held that all the properties to be joint family properties the defendants cannot say during final degree proceedings we have now Tamathara certain documents which definitely go to show that items so and so are our self acquisitions and therefore please examine this and modify the court dealing with the final degree proceeding cannot go behind the preliminary degree taking note of certain subsequent events like death certainly the preliminary degree can be modified but if it requires a re-examination of the facts re-examination of the contention search the court dealing with final degree proceeding cannot do it cannot go behind the preliminary degree supposing the court has already come to a conclusion that the plaintiff let us say the first plaintiff a widow he is the widow of so and so well in final degree proceedings the defendants cannot say we have no sufficient evidence to say that the first plaintiff was not married to that dates at all he was married to someone else we want to demonstrate it now this is certainly going behind the preliminary degree we have one principle in execution that an executing court cannot go behind the preliminary degree similarly a court dealing with final degree proceedings cannot go behind the preliminary degree here please go to section of course with regard to the position that the final degree proceedings the court dealing with the final degree proceedings cannot go behind the preliminary degree it is well settled we have a judgment in the Karnataka High Court in ILR 2007 Karnataka 4308 ILR 2007 Karnataka 4308 Para 17 please go to section 97 CPC appeal from final degree where no appeal from preliminary degree where any party agreed by a preliminary degree passed after the commencement of this court does not appeal from such degree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final degree now a preliminary degree is passed declaring that the plaintiff is entitled to a particular share let us say the plaintiff had sought one third share court gives him only one fourth share he does not challenge that preliminary degree by filing a regular appeal under section 96 CPC or the defendant do not challenge it therefore the preliminary degree remains now final degree proceedings are initiated a final degree is passed again a regular appeal slides against that final degree when a regular appeal is filed against the final degree neither this plaintiff nor the defendant can contend in the applied court the preliminary degree is indirect so if a person is adrift by the preliminary degree he has to challenge that preliminary degree by way of an appeal under section 96 CPC when an appeal is preferred against the final degree the correctness of the finding given in the preliminary degree cannot be agitated is what section 97 CPC says so because my advice to the employers is this well I have said that the court dealing with final degree proceedings can take note of subsequent events modify the preliminary degree therefore if your client is really aggrieved by the preliminary degree do not enter the impression that during final degree proceedings everything can be set right without preferring a regular appeal you are taking a great risk see one situation I said death subsequent to the preliminary degree that can be taken note of there is something else about which I will tell you whatever subsequent developments can be taken note of the court dealing with final degree proceedings I will tell but please be very careful if finding given on a particular issue in a preliminary degree you cannot re-agitate it during final degree proceedings if your client is aggrieved he has to prefer a regular appeal under section 96 CPC what is that further development which can be taken note of by the court dealing with final degree proceedings at the cost of repetition I am telling death subsequent to death of a party or a party subsequent to preliminary degree is certainly a substance which the court can take note of and accordingly modify the preliminary degree what other thing a change in the law can be taken note of by the court dealing with final degree proceedings I have given some indication about it on the last occasion when I was dealing with the trial of partition suits the time was not too ripe then to go into details then but now of course we are since we are exclusively dealing with this it is necessary to go into details of this if there is a change in the law subsequent to the passing of a final degree of course prior to the passing of a final degree prior to the passing of a final degree if there is a change in the law whether the court can take note of it perhaps you remember I had referred to this famous physician of the supreme court in 1980 reported in 1991 volume 3 SCC 647 please make a note of it it is a very important decision 1991 volume 3 SCC 647 some facts are necessary here the parties to the suit are from Andhra Pradesh and a suit was initiated for partition in a court in Andhra Pradesh probably that particular place is known in Kalyandana, Mahbubnagar a suit was filed for partition and all that Andhra Pradesh state legislature brought an amendment to the Hindu succession act section 29 capital A was instructed in the Hindu succession act they discussed this amendment is a daughter was treated as a co-partner I am referring to the Andhra amendment not central amendment of 2005 I am referring to the Andhra amendment it said the daughter is also a co-partner Andhra Pradesh made that amendment long back now the matter ultimately really supreme court the appeal was against the preliminary degree preliminary degree had been passed final degree proceedings had not yet been initiated final degree had not been passed and some drums appeal was preferred ultimately the matter which was supreme court there it was urged that the daughter now having been treated as a co-partner by virtue of the amendment brought to the Hindu succession act by the Andhra Pradesh state legislature she is entitled to a larger share the other side contended the preliminary degree has already been passed there is no question of giving a larger share recognizing there as a co-partner the and it was also said when once a suit for partition is filed there is a severance in status and therefore the question of enhancing the share would not arise the share is already fixed the Andhra Pradesh supreme court did not accept that contention to the Andhra and it said when is a partition to have taken place under the Hindu law where a physical division by meets and bounds takes place or when there is a final degree passed by the court so long as no final degree is passed it cannot be said that there is a partition by meets and bounds and therefore the court can take note of the subsequent change in the law and accordingly enhance the share to that female is a very important decision why is a important is has been followed subsequently by the supreme court in other judgments the next judgment which we can read in this radar is equally famous this is Dunduri Quoteshwaramma versus Chakiri Yanadi 2011 volume 9 SCC 788 2011 volume 9 SCC 788 well by then section 6 was amended by the parliament this decision is in the context of amendment brought to section 6 of the Hindu succession had by the parliament referring to this soil at this stage the Andhra Pradesh supreme court in this Dunduri Quoteshwaramma case held we have already taken this view therefore even in respect of the central amendment the same principle would apply the court can take note of the subsequent change in the law which has no final degree is passed and accordingly modified the share the court also refers to that Purchen case which I have already said saying that there can be two primary degrees this also you may read then we have a judgment in 2011 volume 6 SCC 2011 volume 6 SCC 642 Prema versus Manjagota a matter from Karnataka 2011 volume 6 SCC 642 that Sairat this case and this Dunduri have been followed in this case and it has again been held that the change in the law can be taken note of if law governing the parties is amended before the conclusion of the final degree proceedings the party benefited by such amendment can make a request to the court to take partisans of the amendment and give effect to the same if the rights of the party to the suit change due to other reasons the court sees to the final degree proceedings he is not only entitled to take note of such change and pass appropriate orders then we have the latest judgment in Vinita Sharma reported in AR 2020 Supreme Court page 3117 AR 2020 Supreme Court 3117 I have already drawn your attention to this judgment on the last vacation it bears competition in a different context Vinita Sharma versus Rakesh Sharma AR 2020 Supreme Court 3117 this is how it reads notwithstanding that a preliminary degree has been passed I read it notwithstanding that a preliminary degree has been passed the daughters are to be even share in the co-parsnery equal to that of a suit equal to that of a son in pending proceedings for final degree or in an appeal what does that mean? if a matter is pending in a appeal or if a final degree is not passed and it is a final degree proceedings are pending well this change in the law can be taken note of at accordingly an unanswered share can be given since the view taken by the Supreme Court please remember these decisions and make use of them when the citation arises if you go through Mulla Siddhula you will know who are all the persons to be implanted in a suit for partition I have spoken at some length on the last occasion and I have also told you who are all the persons competent to alienate a joint family property the manager of a joint family can alienate the properties the entire body of joint family for living in city and benefit of the state father has got some special powers of alienation no other co-partner has that power of alienation if alienates it would only bind his share and not others now an interesting question came before the Supreme Court well if a transfer or alienation takes place before the filing of a suit for partition there is absolutely no difficulty alienation would be necessarily implanted and the court will examine whether the alienation was for legal entity was it by the manager or was it of a separate property all those things would definitely the court would examine but if it is an alienation if it is an alienation during the pendency of a suit transwery pendent a light and he be implanted in a final decree proceeding is also a question which has been examined by the Supreme Court in the decision reported in 1983 volume 1 SCC page 18 1983 volume 1 SCC page 18 I will give the names of the parties also because it is a very important decision which I will read and go through it is about 40 or 15 decisions kept in different files which is taken some time of mind to search them please excuse me just 2 minutes it will be a very important decision I want to read a few passages from the decision therefore Mr Chandrasekhar has written KM Chand versus Vishnu Hari yes his party's name is correct the party's name is correct but I want to read the 11 passages it is very much available with me I read it in the morning itself but yes KM Chand Shankar versus Vishnu Hari party it is in 1983 one SCC 18 a judgment by Honourable guest who is here so in the drama here we have a short question involved in these appeals by special levees whether the transfer is during the pendency of a suit for partition of parts of an estate assessed to payment of land revenue to the government which is the subject matter of the suit have local standing to appear before the revenue authorities in proceedings under section 54 CPC and as for an equitable portion of the lands even though they have not the matter arose in the context of a proceeding under section 54 before the land revenue authorities but the principle is important for us a transfer pendent a light would be implanted or need not be implanted a transfery I mean if a transfer takes place before the suit is filed certainly an alien or transfer is a necessary party but if during the pendency of the suit not implanted nothing would happen because section 52 of the TPA would be there he will be bound by the decree here itself I may have to draw your attention to order 22 rule 10 CPC also it is necessary to know it to understand the ratio laid down in this position please go to order 22 rule 10 CPC 22 says death, marriage and insolvency of parties judicial officers who have heard me on order 22 will kind of excuse me for repeating the same old joke the title is a little not all that happy death, marriage and insolvency I jokingly tell the title should have been married insolvency and death all right it is death, marriage and insolvency please go to order 22 rule 10 procedure in the case of assignment before final order in the case of an assignment, creation or evolution of any interest in the pendency of a suit the suit may by leave the court be continued by a by a by or against a person too or upon whom such interest has come or divide it is an enabling provision therefore if an alienation takes place not necessarily in a partition suit in any suit it should be a declaratory suit not in these preventing ancient suits in such a case if an alienation takes place to the pendency of the suit the plaintiff can implicate the alien or the alien himself can come on retard and continue the suit now his lordship justice he has felt the drama and this came to change the decision has referred to section 52 of the DP ad and it is necessary for me to read the observations made section 52 of the transfer of property at no doubt that a transferie pendent to a light of an interest in the immobile property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by proceedings in this suit such a transferie is a representative with interest to the party from whom he has acquired that interest rule teller for order 22 of the court of sale procedure clearly recognizes the right of a transferie to be implanted as a party to the proceedings and to be heard before any order is made it's a fairly long passage please bear with me it's very important and therefore I am spending a good lot of time on reading this it may be that if he does not apply to be implanted he may suffer by default on account of any order passed to the proceedings but if he applies to be implanted as a party and to be heard he has got to be so implicated and heard he can also prefer an appeal against an order made in the set proceedings but with the leave of the appellate court when he is not already brought and retired the position of a this is important the position of a person on whom any interest has devoid on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of a year or a legacy of a party during the pendency of a suit or a proceeding or an official receiver who takes over the assets of such a party in his insolvency on year or a legacy or an official receiver or a transfer he can participate in the execution proceedings even though their names may not have been shown in the decree preliminary or final if they apply to the court to be implanted as parties they cannot be turned out the collector who has to have a partition of an estate under section 54 has no doubt the divided in accordance with the decree sent to him but if a party to such a decree dies leaving some years about whose interest there is no dispute should he hold up his hands and return the papers to the civil court so the same thing applies to the civil court dealing with the final decree proceeding death is reported in the pendency of the final decree proceedings well if there is no dispute about the death if there is no dispute about the legal representatives why should the court say I know you file another suit he need not do so he may proceed to allot the share of the decision party to his hairs similarly he may when there is no dispute allot the share of a decision party in favor of his legacies in the case of insolvency at the party the official receiver may be allowed may be allotted the share of the insolvent in the case of transfer is pending tail light also if there is dispute the collector may proceed to make allotment of properties in an equitable manner instead of predicting their claim for such equitable partition on the ground that they have no local stand obviously a transferring would come with a registered title deed well that will be sufficient proof or even if there is dispute a formal inquiry to satisfy the court's conscience that there is a transfer is sufficient a transfer from a party of a property which is the subject matter of partition can exercise all the rights of the transfer there is no dispute that a party can ask for an equitable partition a transferring from him therefore can also do this such a construction of section 54 advances because of justice otherwise in every case a party dies or a party is adjudicated as an insolvent or when he transfers some interest in the suit property pending tail light the matter has got to be referred back to the civil court of course in other cases the matter is in the civil court itself even though there may be no dispute about succession devolution or transfer of interest in any such case where there is no dispute if the collector makes an equitable partition taking it to consideration the interest of all concerned including those or who many interest in the subject matter has devolved he would neither be violating the decree or transcussing any law his action would not be ultra virus or the other hand it would be conformity with the intention of the legislature which has placed at the work of partition of plans subject to pavement of assessment to the government in his hands to be carried out in accordance with so if the honorable supreme court says that the collector also can implement the transfer and suitably modify the share and all that per force it follows that a civil court which is seized of the final decree proceedings and certainly do it in fact a civil court would be better placed to examine whether there is a valid transfer whether it is by way of a registered instrument whether the transfer is proved in accordance with the title date is proved in accordance with law all that would be done. The of course I read out this very judgment and it says that a legity also can come on record during the final decree proceedings here some explanation is required in what situations the claim of a legity or the claim of a portion claiming to be a legity can be examined. Of course I am not backward by any decision except that of decision where it says a legity cannot I have considered of some situations the first situation is this if the will is prior to the suit and the legity is an year of the propositors please follow this it is the propositors a suit is filed for partition that legity is an year of the propositors and he is a party to the suit it is the propositors a suit is filed by A against B, C, D and E let us say C is a legity under a will executed by yes if he does not raise the question of will during the pendency of the suit I do not think that he can be allowed to raise a plea on the basis of will during FTP it is only after the death of the propositors yet the suit is filed this legity claiming under the propositors saying that the propositors has executed a will does not raise the question of will when the suit is pending or before the preliminary decree can be passed I do not think that he can be allowed to raise a plea on the basis of will during FTP because the plea was very much available to him when the court passed the preliminary decree supposing if the will is executed during the pendency of the suit and by a party to the suit either the plaintiff or the defendant executes a will during the pendency of a suit and that party raise plaintiff executes a will in favour of somebody else or in favour of one of the other parties the suit or the defendant executes and he raise but the legity does not choose to come on record in the suit whatever share the deceased the tested party that is the plaintiff or the defendant is given in the preliminary decree will go to the legity and the legity may have to be permitted to prove the will in FTP well this is my thinking you cannot ask me to cite a decision well you can examine you are also free to take your own view I think there should not be any bar then if a person climb into be a legity under a person who is not a party to the suit in which the preliminary decree is passed wants to come on record during FTP he cannot be permitted well some person is not a party to the suit at all he climbs to be a legity he cannot say that during final decree proceedings my right under the will needs to be exact so this is another aspect of the matter which you will bear in mind so now what is it that we have seen we have seen that there can be a preliminary decree and a final decree it could be partly preliminary it could be partly final there can be a number of preliminary decrees there can also be a second final decree I mean there can be two final decrees and then we have said that the court dealing with final decree proceedings cannot go behind the preliminary decree if an appeal is not preferred against the preliminary decree in the appeal that is preferred against the final decree that finding cannot be urged in view of section 97 CPC no need to file a petition for initiation of final decree proceedings it is the court's duty to do it even if such a petition is filed the court has to take it as a reminder to it to perform its duty there is no period of limitation provided for this trans-rependent highlight can be brought on record change in the law can be taken note of and preliminary decree can be varied I mean preliminary decree can be modified and shares can be varied now a final decree needs to be engrossed on a stamp paper I am able to give this specific provision as far as Karnataka is concerned elsewhere there may be such a provision I will give the inventory supreme court also a little later first let us go to section 2 K of the Karnataka stamp I am reading section 2 K of the Karnataka stamp instrument of partition means any instrument whereby the co-owners of any property are agreed to divide such property in severality and includes a final order for affecting a partition passed by any revenue authority obviously to section 54 CPC or AD civil court therefore a final decree passed by a civil court is also treated as an instrument of partition under the Karnataka stamp and stamp duty has to be paid probably it is under article whichever is the article it is not worry about it it provides for living stamp duty now a final decree has to be engrossed on a stamp paper please go to 1995 3 CCC 1995 volume 3 CCC 413 this is a decision to separate obviously it applies to the whole of the country of course supposing if any state stamp at itself says that no stamp duty specifically it says that no stamp duty is payable on a final decree certainly this decision the supreme court will not come in the way but if there is no provision and stamp duty has to be paid then the final decree will have to be engrossed on a stamp paper 1995 3 CCC 413 that much to be read from the judgment since I have number of decisions it is taking time for me to search 1995 3 CCC 413 Shankar Balavan Lokhande Shankar Balavan Lokhande versus Chandrakant Shankar I am reading paragraph 12 at page 419 as to Matsudon's case we state that it has not been correctly decided limitation does not begin to run out from the date when the direction is given to pass a final decree we are giving up a direction to supply stamp paper for passing a final decree does not amount to passing a final decree until the final decree determining the rights of the parties by meets and bounds is gone up and engrossed on a stamp paper supplied by the parties there is no executable decree of course reference is made to the Bombay stamp and then therefore the executive court cannot receive the preliminary decree unless the final decree is passed as in section 120 rule 18 approved to after the final decree is passed and the direction is issued to stamp papers for to give stamp papers for engrossed final decree thereon and the same is Julie Entras on stamp papers it becomes executable or it becomes an instrument duly stamped the decision president is to draw up a final decree and then to engross it on stamped papers of required value these two adds together constitute a final decree crystallizing the rights of the parties in terms of the preliminary decree till then there is no executable decree as initiated in order 20 rule 18 this decision of the supreme court has been followed by the Karnataka High Court in a decision reported in AER 2002 Karnataka 439 AER 2002 Karnataka 439 AP Mandanna versus AP Pushalappa now there are two things here normally in partition suits normally with the passing of a final decree the proceedings component hardly there may be any occasion for the parties to initiate an execution proceeding because the commissioner would have gone there he would have divided the properties he would have shown which portion should go to the first plaintiff which portion should go to the second plaintiff defendant and all that he submits a report he uses sketch the parties would either file their objections or the court would say well it's fine and totally allotted many times the parties would have already taken possession also in terms of the report given by the commissioner and hardly an occasion arises to execute a final decree for partition I might tell you having worked in the Karnataka judicial as a trial judge for 31 and half years I had no occasion to deal with an execution petition in respect of a partition suit may be final decree proceedings but not execution proceedings at all obvious such a situation would not arise assuming the situation is like this is how it happens A, B, C, D are numbers are course errors in terms of the report of the commissioner a portion rather a land or a portion of the land has to go to A that is how he has proposed it the court also accepts the report and for some reason let us say either the house of A is near that land and therefore it is felt if this land is given to A as a share well it would be convenient for him to have access to the house or maybe A has his own separate land somewhere there and if a share in this land is given to him it would be convenient there is no dispute about it but actual physical possession or occupation is with the defendant despite this final decree he doesn't deliver possession of that then an occasion might arise for this plaintiff A to file an execution petition seeking direction to the defendant to deliver possession of the property allotted to him in terms of the final decree there the question of execution of the final decree comes normally it doesn't come I am not telling that final decree proceedings and execution are going on they say please don't mistake me that way I am not telling it at all an occasion to execute a final decree in a partition soon hardly arises so one such situation I gave is where physical possession is with one of the defendants and that property is allotted to the plaintiff or vice versa also then there may be an occasion to execute the final decree here again when it comes to execution we are down with the provisions of the limitation at limitation at provides a particular period for filing an execution petition don't impute your knowledge of this final decree proceeding saying that there is no period of limitation for initiation of final decree proceedings in partition suits if it is a question of executing a decree final decree for partition certainly it provisions the limitation at in a matter of execution would be applicable that has been clarified both in this decision to supreme court and by our high court in the decision cited by me so then the stamp duty I have told you the next question is whether final decree requires registration well this is something which is troubling as I told you on the last occasion before I started my presentation I had heard Chitra Sampath presentation on YouTube she also said that a final decree does not require registration if you have it you the registration at please go to section 17 17 1 gives a list of 5 documents which require compulsory registration 17 1 A to E it gives a list of documents for which registration is compulsory or mandatory 17 1 A I have exhausted myself about it only for the purpose of section 53 A 17 2 it is an exception nothing in classes B and C of subsection applies to here 13 documents are referred to which does not require registration 17 2 gives a list of documents which does not require registration nothing in classes B and C of subsection 1 applies to what does that mean in respect of the documents shown in classes 1 to 12 of course there is an addition 10 A therefore totally it would be 13 in respect of these 13 documents no registration is required please hear me very carefully 17 1 gives a list of 5 documents which require compulsory registration 17 1 A is an independent subsection it deals with a document for purposes of section 53 A of the DPR 17 2 gives a list of 13 documents where which does not require registration one of those is this it is 17 2 6 common 6 17 2 6 any D3 order of a court please read it very carefully if you have a book with you if you do not have a book with you please hear me very carefully any D3 or order of a court within brackets accepted D3 or order expressed to be made on a compromise and comprising immobile property other than that which is the subject matter of the suit or proceeding a D3 or an order of a court does not require registration Jane and David would be passing several degrees it does not require registration when does a D3 require registration accept a D3 or order expressed to be made on a compromise and comprising immobile property other than that which is the subject matter proceeding all compromise no D3 requires registration all compromise D3 also do not require registration if the compromise D3 is in respect of an immobile property which is not the subject matter of the suit then only such a compromise D3 requires registration please go to order 23 rule 3 CPC 23 rule 3 compromise of suit where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit the court shall order such agreement compromises satisfaction to be recorded and shall pass a degree in accordance with so far as it relates to the parties to the suit whether or not the subject matter of the agreement compromise or satisfaction is the same as the subject matter of the suit where the civil procedure court came to be amended by act number 104 of 1976 with effect from 12 1977 or rule 3 of order 23 also came to be amended and since then there can be a compromise in respect of a property which is not the subject matter of the suit therefore, if under a compromise degree the party gets a written in respect of a property which is not the subject matter of the suit that properties included in the compromise degree, then such a compromise lesson requires registration therefore no other compromise require registration no other degree passed on the test requires registration There is no question of a final degree being registered merely because final degree requires to be drawn on a stamp paper it does not follow that it requires registration please understand a document being written on a stamp paper is one thing a document requires registration it is two different things. Now as per the playing language of order 17 rule 2 class 6 a compromise degree in respect of a property which is not a subject matter the suit requires registration then which other compromise degree requires registration it is a judicial interpretation for it first make a note of these decisions 1995 volume 5 SCC 709 1995 volume 5 SCC 709 1996 volume 3 SCC 289 1996 volume 3 SCC 289 2006 volume 10 SCC 788 2006 volume 10 SCC 788 2008 volume 13 SCC 102 2008 volume 13 SCC 102 then 2015 volume 3 SCC 465 I repeat 1995 volume 3 SCC 709 1996 volume 3 SCC 289 2006 volume 10 SCC 788 2008 volume 13 SCC 102 2015 volume 3 SCC 465 123 12345 though I have given these five decisions you better read three of them compulsorily 1995 SCC 709 then 2006 10 SCC 788 2015 3 SCC 465 that is the latest decision to please with us 2015 3 SCC 465 is by a larger point because there was some conflict of view now what has been held in these decisions is if for the first time a party gets a right in respect of an immobile property worth more than rupees 100 under a degree and a degree then it requires registration compromise degree if a party for the first time gets a right you did not have a pre-existing right then it requires registration this requires an example to understand forget about a partition suit take a suit for declaration of title a suit for declaration of title is filed in respect of a particular property let us say it measures four acres four acres of land plenty files a suit for declaration of title in respect of four acres of land plenty for the defendant enter into a compromise the compromise is this out of these four acres plenty should give two acres to the defendant in turn the defendant would give some two acres or one acres or some property belonging to him to the plaintiff this is the terms of the compromise certainly the compromise is permissible in order 20 3 rule 3 there can be a compromise in respect of a property which is not the subject matter of the suit the subject matter of the suit for declaration of title is four acres of land now the compromise is plenty would give up two acres to the defendant in turn the defendant could use some property to the plaintiff the property which the defendant could give to the plaintiff is not the subject matter of the suit plaintiff gets right to that property which is not the subject matter of the suit in terms of this degree therefore it requires registration under 1726 now in respect of these two acres of land out of the four acres defendant for the first time under this degree gets a right he did not have a pre-existing right in respect of these two acres of land under the degree for the first time he gets that right therefore it requires registration this is what has been held in this 1995 SCC 709 so number one as per the provisions of 1726 if a degree the compromise degree is in respect of a property which is not the subject matter of the suit it requires registration because plain reading of the provision makes it clear as per these decisions if there is no pre-existing right if under the compromise degree the parties for the first time get a right then it requires registration now in the context of a partition suit it might happen like this plenty files a suit in respect of joint family properties defendants content that there are certain other properties which also belong to the family the plaintiff deliberately has not included them plenty of food content there is self-acquisitions and therefore he has not included them now a compromise is entering it is considered by the defendants that they are their self-acquisitions of the plaintiffs or even if there is no such considering or even if there is no such context when they enter into a compromise the self-acquisitions of the plaintiff the self-acquisitions of the defendant are also brought then for the first time the plaintiff gets a right in respect of the self-acquisitions of the defendant for the first time the defendant gets a right or a share in the self-acquisitions of the plaintiff so when there was no pre-existing right and when for the first occasion the parties get a share of a right in respect of a property under a compromise then it requires registration this is another thing which you will bear in mind now whenever we deal with these final decree proceedings in partition suits your reference to the partition act is also required before I part with you for the day let me personally take you through the provisions of the partition act it's a very brief it's a very short enactment containing only 10 sections I am not taking you through all these provisions for want of time I am only giving you the object of this enactment and how it can be made use of we have an indication from order 20 rule 18 sub rule 1 sub rule 2 which I read at least twice today twice or twice on the last occasion at least once I said if without further enquiry the court cannot say whether the partition by meats and bones is permissible a preliminary decree would be passed now final degree proceedings are initiated it turns out that the immobile property which is the subject matter of that degree preliminary degree cannot be divided by meats and bones then the provisions of the partition act are taken recourse to it provides for a sale of that property and one would get the property the others would get money this is in brief the scheme of the partition that I don't have time to deal with it in great detail but I would for the benefit of the audience refer to some important decisions of the Supreme Court and be done away with it part with you after referring to those decisions one important decision of the Supreme Court which is frequently referred to by the Supreme Court in other decisions and other high courts is in that Ramamurthy IR versus Raja V Rajeshwar Rao's case or Ramamurthy IR versus Raja V Rajeshwar Rao AER 1973 Supreme Court 643 AER 1973 Supreme Court 643 it's also reported in 1972 volume 2 SCC 721 I will first give these citations thereafter only refer to this Ramamurthy IR and be done away with it the next is AER 1978 Supreme Court 845 AER 1978 Supreme Court 845 AER 1990 91 Supreme Court 700 AER 1991 Supreme Court 700 AER 1997 Supreme Court 471 AER 1997 Supreme Court 471 AER 2000 Supreme Court 2684 AER 2000 Supreme Court 2684 AER 2001 Supreme Court 61 AER 2001 Supreme Court 61 AER 2002 Supreme Court 2434 AER 2002, Supreme Court 2434, AER 2002, Supreme Court 2500, AER 2002, Supreme Court 2500, then 2009, Volume 13 SCC 569. These are some important decisions of the Supreme Court dealing with the Partition Act. You see, Section 2 reads like this. It appears to the court that by reason of the nature of the property to which the suit relates, or the number of the shareholders varying, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders. The court may, if it thinks fit on the request of many of such shareholders, interested individually or collectively to the extent of one of my dear reports, direct a sale of the property and distribution. In this Ramur Faheyer's case, the Supreme Court has said, the court need not give a definite finding that the property is incapable of division by means of bonds. Even if it appears to the court, it is sufficient. Now, let us take a big house, it's quite common in villages. There is a big house, there is a very big hall, but a small bedroom, one common bathroom. No doubt the house is quite big. Is it capable of division by means and bonds? Is it necessary to appoint an engineer and give a report saying that it is incapable of division by means and bonds? A mere look at that house, a photograph would satisfy the court that if it appears to the court that a physical division is impossible, then the provisions of the partition that can be taken records to is what if this Ramur Faheyer's case held? Well, procedure is there. The provisions of the civil procedure court relating to sale in institution proceedings could apply to these things also. Well, there can be a sale between the parties to the suit. If it is not possible, then there could be a public auction also. This is, with this, I believe I have drawn the final decree also. So I drew the preliminary decree last week. I have drawn the final decree also. So if you have got any questions, I will be pleased to answer. Yes, this is by Chandrasekhar. Suit is filed in the year 2008. Yes, but one of the properties incorporated in 2010, which is purchased in the year 2009, whether purchased is necessary in FDP. The question is this, suit is filed in the year 2008. The particular property which was purchased in the year 2010 was not a subject matter of the suit. And I don't think in a partition suit, in respect of some property belonging to someone else, the court need to bother itself during final decree proceedings. See, what I said is this, in the context of registration, I said if it is a compromise decree, if some other property is included, it requires registration and all that. But that is not the situation here. Suit is filed in the year 2008 or 2009. Some property is purchased, some other property is purchased. Is it the subject matter of the suit or some other property? Mr. Chandrasekhar, is it the subject matter of the suit that is purchased or some other property? I will share it on the WhatsApp. Meanwhile, this is in the final decree proceedings. If one of the schedule properties to be of the schedule property is sold to the third party, a building is constructed here on. Can a third party be implanted in this? Yes, it can be implanted, it can certainly be implanted, there should be no difficulty. Chandrasekhar says incorporated by amendment. Incorporated by? Amendment. Yes, you can bring it in, you can examine that. Of course, if it doesn't require so much of inquiry, if on the basis of the platings and other things such an inquiry could be made, certainly it could be implanted, there should be no difficulty. Then. This is on the YouTube. Chandrasekhar's question. Suit is filed in the year 2008. So this is what I brought to you. But one of the properties incorporated in 2010, which is purchased. So the question is this, there is already a preliminary decree, can you say a final decree proceedings? There is already a preliminary decree in the preliminary decree, rather in the suit, which culminated in the preliminary decree, this property was not included. That cannot be included in final decree proceedings. And we can't examine whether it is a giant family property or it is a separate property and or from what source he purchased the property. All this requires some adjudication. I don't think that this could be included in a final decree procedure. What is the scope of compromise in the final decree proceedings? The same thing or 23 rule three, the compromise should be lawful. The compromise should be voluntary, definitely. And as I said, if some other property is included, or if for the first time a property party gets a right, it requires registration. Decree holder purchases the property of a defendant and money decree with the leave of the court. Does that sale certificate require registration? No, no. Sale certificate does not require registration. It is very clear with the registration act itself. A sale certificate issued by a civil court and order 21 rule 94 CPC does not require registration. Of course, it is outside the scope of today's presentation. But anyway, coming as it does from a junior member of the bar, I believe I, I don't mind answering the question. Please go to order section 17. Subsection two. Subsection two. Class 12. Any certificate of sale granted to the purchaser of any property sold by public auction by a civil or revenue officer? It does not require registration. And in fact, here again, we have a judgment of justice. Are we reviving the Supreme Court saying that a sale certificate issued in order 21 rule 94 CPC does not require registration? But an intimation is sent under the Karnataka civil rules of practice. An intimation will be sent to the sub-register. A copy of the sale certificate will have to be formation. Obviously, when a copy is sent, there is no question of registration. Intimation will go to the sub-register. No registration is required. So this question is long. A had purchased the property before the institution of the partition sued. But the sale deal was kept pending under section 45 sub, 45 A of the Stamp Act. The seller has got the partition sued without including the purchaser. Now A has got the sale certificate. The seller got the partition sued file without including the purchaser. Now A has got the sale date registration completed. Can A himself get implanted in the final degree proceedings? No. You see, in the preliminary degree, this property was not included. I don't think that he can do it. No. Yeah. Meanwhile, I will request Mr. Santosh Boda. Somehow he has become the host. He should transfer the host rights to Amin. Why? Yeah. Here it's over. I will ask, take from the YouTube. If any person had died without a will and he was unmarried and his brother and sister also died, he has two mothers, then how can his property will be distributed amongst the nephews can step will be distributed amongst his nephews? This is the question. Well, it takes us to the province to the Hindu Subcession Act. We have. We have. Cross one years, class two years. So it requires an analysis. How these parties are related to the test date, the person who died in test date. You see, section eight of the Hindu Subcession Act. Yes, sir. Yes, sir. Yes, sir. Yes. You see, section eight, firstly upon the years being the latest specified in class one, secondly, there is no year than upon the years being the latest specified in class two. Well, it refers to actual examination. How the persons claiming a share are related to the interstate where they are class one years or class two years or their class one years. If there are no class one years, then class two years in class two years also there are different entries. The. Each entry would exclude the other one persons mentioned in one entry would exclude the other one. It requires factual examination. You will have to have a genealogy, find out how the plaintiff who is claiming a share is related to the interstate. Of course, it also depends upon the fact whether the property is joint family property or ancestral property or the separate property of the interstate. When a party prayed for a share, can the court grant monetary compensation by way of preliminary decree? No, in the question of granting monetary compensation, the preliminary decree does not arise. It is only during final three proceedings if the court comes to a conclusion that the property cannot be divided by means and bounds while taking the course to the provisions of the partition that the property is sold and one person is compensated. There is also a concept of mobility that has also been explained by the Supreme Court in one of the decisions. Supposing one property is given two acres of land is given to the plaintiff, it is a wet land, very yielding. Another property is given one acre, dry land is given. Well, to apportion that to see that the same thing is balanced. Well, some other property equal to that can also be given. This is called the concept of mobility in one of the decisions which I have referred to, that concept of mobility has also been explained by the Supreme Court. That is also necessary to be kept in view by advocates who conduct partitions cases. There is one other question. If a sale deed is cancelled in cancellation declaration suit, does the degree of cancellation require registration and their stamp duty has to be paid even though the court fee is to be paid. There are two different aspects. Now, to institute a suit for cancellation of a degree, court fee is payable. Of course, I am sure that even in other states of court fee is levied. In Karnataka, the relevant provision is section 38. Please have a look at section 31 of the specific relief act. If a sale deed is cancelled, I will post it in the mail. In cancellation, does the degree of cancellation require registration? Please go to section 31 of the specific relief act. Any person against who were written instrument is wide or wideable and who has reasonable apprehension that such instrument is left outstanding may cause them serious injury, may sue to have it adjudged wide or wideable and the court may in its discretion so adjudge it and order it to be delivered up and cancelled. Therefore, that instrument should be either wide or wide up in terms of the provisions of section for 90 of the specific contract and then subsection 2. If the instrument has been registered under the Indian registration act, the court shall send a copy of its degree to the officer whose instrument has been registered and such officer shall note on the copy of the instrument contained in his boots the fact of its cancellation. The registrar is only required to make a note that the instrument has been cancelled. It is not a question of registration of a cancellation degree. The court has to send a copy of its degree. It does not require registration. Is partition act applicable in all states? That I will have to examine. At least as far as my state is concerned it is applicable. Some question is loading appeal. If the appeal is if the appeal is pending and the purchaser comes to know about the pendency of the suit then the purchaser has to file an application for implementing the original suit or in FTP. See this happens if the appeal is pending. Sometimes now this requires some let me also tell if an appeal is preferred against a preliminary degree. The legal position is the appellate court cannot stay the final degree proceedings. It can only stay the passing of the final degree because the supreme court has said since final degree proceedings take a long time for its elimination. It is not proper for the appellate court to stay the proceedings of the final degree. Only the drawing up of the final degree has to be state. Now the question is this. Hello to do if an appeal is pending and the purchaser comes to know about the pendency of the suit then the purchaser has to file an application for implementing the original suit or in the FTP appeal is pending. The question of making an application of the original suit would not arise. Now when the appeal is pending. Oh well, if we can make out a case as to why you did not choose to impede yourself in the report showed him I believe that he was not aware of the benefits of the suit. Well, he can come up on record in the appellate court. In fact, the judgment of justice years when the trauma, which I read out, he will also give an indication that some other person affected by the degree who is not a party to the suit or who is not a party to the degree can also prefer an appeal. There is that indication and there are other statements also say that a person who is not a party to the suit can also prefer a regular appeal if he is addued by the degree has to seek the leave of the court. Maybe he can come on recording the appeal saying that I'm a purchaser. Even a lawyer knows is that the appeal is a much larger scope than the review is for impleading, etc. Is agreement to partition can explain can claim by by way of specific performance. I don't think I don't think that a suit for specific performance would lie. Seeking a degree for affecting a partitioned out full. So what is the procedure for transferring the degree not transmission or degree is the distribution required? No, no, the transfer of a degree is contemplated by this real procedure code. You see if the defendant does not reside within the jurisdiction of the court, his arrest is required. Or if he does not the judgment data does not have properties within the jurisdiction of the court with positive the degree. Then the court can transfer the degree to a place where the judgment data has property or various states that is clear from section 38 and 39. There is no question of registration there. So we will be taking the last question in what gets food. If more gauges transfer the property to a mortgage in a mortgage suit by compromise, does the compromise require a registration? Again, the point is this. A compromise requires registration. If the compromise is in respect of a property which is not the subject matter of the suit or if in terms of the compromise for the first time the party gets the right. Yes, thank you. The questions will keep on pouring. There would be no end to it. And thank you for enlightening us. I'm seeing on the YouTube as well as on the Facebook. They're all too happy that you have shared the knowledge and that too. Those who have missed the previous webinars, sir has taken three sessions of these partitions. You can watch them on the channel of Beyond Law CLC. And and so we would like to share that Mr. P. K. Devdas has agreed and tomorrow we will be having a session on post-mortem reports and criminal trials. Do stay connected with us. Not you, but all the participants, not the in the criminal trial, but at 4.30 p.m. tomorrow. Thank you, everyone. Stay safe. Stay blessed. Thank you. And before I conclude. Yes, sir. I see on the video, my good friend should be in Rabindra here, retired state judge. We worked together in Mysore for about two years. He's my good friend. He's in constant touch with me. He also comes to the judicial academy. Well, I see him. He's my very good friend. No. In Hindi, they say, eke se bhale doh, we will ask him to share his knowledge. I will ask you to share his number. We will ask him to share his insights. Of course, with his permission. If he raises a thumbs up, we will ask his number. Thank you. Though the folded end will also show that he's saying, bhas karo. Thank you, sir. Thank you. Thank you. Mr. Gowda, you can close the meeting since per chance. I've told you that you have got the rights of the post in the meeting. Okay. Thank you. I have become the host. Thank you, everyone.