Preliminary decree for partition (article)

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A ROLE OF CIVIL COURT AFTER PASSING OF PRELIMINARY
DECREE FOR PARTITION
A preliminary decree in a suit for partition only decides the rights of
the parties and their shares. Equities are adjusted at the stage of final
decree after taking into consideration the tentative or provisional partition
scheme. The directions contemplated by Order 20, Rule 18 (2) of the Code of
Civil Procedure (in short “the CPC”) are the directions, which have to be
necessarily issued by the Court passing preliminary decree in order to give
effect to the rights of the parties determined at the trial. The directions have
to be on consonance with the rights of the parties. The purpose of
preliminary decree is that the terms settled by the Court are executed and
respective possessions are delivered after deciding equities between the
parties. The final decree must be passed as provided in Order 26, Rule 14 of
the CPC, so far as direction by Order 20, Rule 18(2) of the CPC is concerned,
which is a decree in suit, which continue till the final decree is made which it
is duty of the Court to make without any formal application by the parties.
It is now a well settled principle of law that in the case of the
execution of the decrees pertaining to partition and separate possession of
agricultural lands assessed to revenue, the Civil Court only declares the
share of the parties and the authority concern has to effect the partition or
division by metes and bounds, as envisaged by Section 54 of CPC.
In this connection it would be proper to read the relevant provisions of
Section 2(2), Sec.54, and Order 20, Rule 18, of CPC.
Sec.2 (2) defines “decree”
“decree” means the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively determines the
rights of the parties with regard to all or any of the matters in controversy in
the suit and may be either preliminary or final. It shall be deemed to include
the rejection of a plaint and determination of any question within section
144, but shall not include:
(a) any adjudication from which an appeal lies as an appeal
from an order; or
(b) any order of dismissal for default
Explanation. A decree is preliminary when further proceedings have
to be taken before the suit can be completely disposed of. It is final
when such adjudication disposes of the suit. It may be preliminary and
partly final”.

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Whether an order passed by a Court is a decree or not:
Test to determine: i) There must be adjudication; ii) Such
adjudication must have been given in a suit; iii)It must have determined the
rights of the parties with regard to all or any of the matters in controversy in
the suit; iv) Such determination must be of a conclusive nature and; v) There
must be a formal expression of such adjudication. (See – S. Satnam Singh
and others v. Surender Kaur and another 2009 (4) MH. L.J. 6 (SC) Two
JJ)
It is settled law that there can be more than one preliminary decree in a
suit. Similarly, there can be more than one final decree in a suit. A decree
may be partly preliminary and partly final. The explanation to the sub
section makes it clear that a decree is preliminary when further proceedings
have to taken before suit can be completely disposed of. It is final when such
adjudication completely disposes of the suit. (Rachakonda Venkat Rao
and others V. R. Satya Bai(D) by L.R. and another AIR 2003 SC
3322(DB).,Ha sham Abbas Sayyad vs. Usman Abbas Sayyad & others
2007 (3) MH.L.J.56 (SC), Phoolchand and anr v. Gopal Lal (1967) 3
SCR 153, Mool Chand and ors. v. Dy. Director Consolidation and ors.
AIR 1995 SC 2493.
In certain situations, for the purpose of complete adjudication of the
disputes between the parties an appellate Court may also take into
consideration subsequent events after passing of the preliminary decree. (See
– Nachiappa Chettiar and ors. v. Subramaniam Chettiar (1960) 2
SCR 209. So there can be amendment of preliminary decree, S. Satnam
Singh and ors. Surender Kaur and other 2009 (4) MH. L.J. 6 (SC)Two
JJ)
The substantive provision, namely, section 54 requires that partition
of estate or separation of share in the estate assessed to the payment of
revenue to the Government shall be made by the Collector or any gazetted
subordinate deputed by him in that behalf in accordance with law (if any) for
the time being in force relating to the partition, or the separate possession of
shares of such estates.
Section54 reads thus:
“54. 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),

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for the time being in force relating to the partition, or the separate
possession of shares, of such estates”.
The provisions of Order 20, Rule 18 provides for mechanism for execution of
decrees in the suit for partition of property or separate possession of the
shares therein. The said provisions thus, reads:
“0 20, R.18. Decree in suit for partition 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 and 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 direction as may be required.”
The other relevant provisions for the purposes of execution of decree in suit
for partition is under Order 20, Rule 13.
It reads thus:
“O.26, R.13. Commission to make partition of immovable property
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.”
Thus, from the above provisions it is clear that where the decree
relates to any immovable property and the partition or separation cannot be
conveniently made without further inquiry, then the Court may pass a
preliminary decree declaring the rights of several parties interested in the
property and giving such further direction as may be required. The
preliminary decree for partition is only a declaration of the rights of the
parties and shares they have in the joint family or coparcenary property, the
subject matter of the suit. If the subject matter is the agricultural lands
assessable to revenue, all further proceedings are to be taken before the
Collector or any gazetted officer subordinate to him, to whom the powers
were delegated by the Collector as per Section 54 read with Order 20, Rule

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18 of the CPC. When matter goes before the Collector, he has to pass final
decree by coming to the conclusion, how the land should be partitioned
between the parties and then he has to execute the decree actually by putting
the parties in possession allotted to them as observed in Annsaheb 2001(3)
Mh.L.J.53, Ramabai AIR 1945 Bom.338, Kisan 2000(4) Mh.L.J.485.
The Order 20, Rule 18 (1) refers to a preliminary decree. The
preliminary decree in a partition action is a step in the suit, which continues
until the final decree is passed.
In this connection let now see the position of law.
In Ramrathibai wd/o Sivanath Pardeshi vs. Surajal Bhanlal
Choudhari and others 1996 (2) Mh.L.J.40 (SB) (Nag), in a suit for
partition and separate possession which included agricultural lands,
preliminary decree was passed on 911947 with respect to property other
than agricultural land and final decree on the same date regarding
agricultural lands. The decree was confirmed in appeal on 211948. On 152
92, the decreeholder made an application before the trial Court for issuance
of precept to the Collector under section 54 of CPC, for partition of the said
lands pursuant to the decree.
It was held that in the final decree as passed on 9147, it was ordered
that the Collector should partition the agricultural lands and a precept be
issued to the Collector on an application by the plaintiff and on payment of
costs necessary for the purpose and on filling the requisite copies. Such an
application for issuance of the precept could not be said to be an application
for execution of the decree. It was only a request to the Court to do the
ministerial act and was neither governed by section 48 of the Civil Procedure
Code, as it existed prior to 111964, nor governed by Article182 of the
Limitation Act, 1908, or the Limitation Act, 1963. The direction was given to
issue precept to the Collector.
In the case of Jacinto and another vs. Fernandez 41BLR921= AIR
1939 Bom.454, it was held that an application to send the decree to Collector
for effecting a partition, being only request to the Court to do a ministerial
act, is not governed by the said Article182. It was further held that when an
order is made for partition of lands assessed to Government revenue, the
Court makes an order decreeing partition and directing the parties to be put
in possession and referring it to the Collector to carry out the partition. It
was also held that when an order in that form is made, the Courts duties are
finished, and it is for the Collector to partition the property and put the
parties into possession.

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Whether the decree is taken to be preliminary or final, in the case of
Jesinglal vs. Gangadhar 40 BLR 507, it was pointed out that it was only
in the case of preliminary decrees in mortgage suits that an application for
making it final is expressly required by Order 34 of CPC. The provisions in
the CPC in respect of partition and partnership suits are different and refer
to various provisions, which require the Court passing the preliminary
decree in such suits to take the necessary steps suomotu. It was, thus, held
that Article181 is also not applicable.
Section 54 of CPC provides that the decree for partition of the
agricultural lands i.e. the estate assessed to the payment of revenue to the
Government, or for separate possession of a share of such an estate passed
by the Civil Court, shall be effected by the Collector or any gazetted
subordinate of the Collector. (Chandmal vs. Shantilal AIR 2003 Bom.
445, (SB)
In Ramabai Govind vs. Anant Daji AIR 1945 Bom.338 (FB), it
was held that “if for these various reason such a decree be regarded as
preliminary, it would follow an application made by a party to a decree under
Order 20, Rule 18 (1), asking that the papers should be sent to the Collector
for effecting a partition as directed in it is of the nature of a mere proceeding
in the suit rather than an application to execute the decree, and that there is
no period of limitation for making it.” It was held that when making
partition the Collector does not purport to make a final decree. He proceeds
from division by metes and bounds to delivery of possession as in one
proceeding, and not as if he was conducting two distinct proceedings, one
equivalent to a proceeding in suit, and the other to a proceeding in execution.
It was further considered the question that if the decree is regarded as
the final decree, still then such an application asking the Court for issuance
of the precept to the Collector is not an application for execution of the decree
and only a request to the Court to do ministerial act for sending the papers to
the concerned Collector. It was held thus, “if on this line of reasoning the
decree be regarded as final, it must be called that not every final decree is
capable of execution. A merely declaratory decree, though final, is by its very
nature, incapable of execution, so, too, is a decree under Order 20, R.18 (1),
CPC. It merely declares what are the shares of the parties in the suit lands
assessed to Government revenue and whom the partition is to be effected, but
it does not embody a direct order to the Collector or to the judgmentdebtor to
do anything. From this point of view it is merely declaratory. It is true that
section 54 appears in the Civil Procedure Code under the heading “procedure
and execution.” That section may have been placed before only to show that

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such a decree is incapable of execution by the Court, and that if a party
wants a partition effected as directed by the decree, it is only the Collector
who can effect it. For that purpose he request the Court to send the decree to
the Collector. The sending of the decree to the Collector is only a ministerial
act and not execution of the decree.
It is true that in certain circumstances the Civil Court may have a
control over the proceedings. However, the said control is of the nature that
it is only if the Collector contravenes the decreed order, or transgresses the
law or otherwise acts ultra virus, or refuses to carry out the decree, that his
action is liable to be controlled by the Court, which pass the decree.
(Ningappa Balappa and others vs.Abaskhan Gauskhan AIR 1956
Bombay 345(DB),Mahadu Alias Mahadeo Baji Bhosale vs. Appaji
Gunbarao Bhosale since deaceased by his heirs Gangabai Appaji
Bhosale and others 2003(2) Mh.L.J.216(SB).
In Narsu and others vs. Narayan Krishnaji and others AIR 1959
Mysore.233, after following the Full Bench decision in Ramabai’s case
(AIR 1945 Bom.338) it was held as under.
“A decree passed under Rule 18 (1) of Order XX, directing partition by
the Collector cannot be said to be a preliminary decree. So far as the Civil
Courts are concerned it is final for all purposes, though the partition of the
property may remain to be effected by the Collector. Subrule (1) of Rule 18
does not contemplate any application to be filed by the parties for sending
the papers to the Collector. It says that the Court 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. This direction must be deemed to be a
part of the decree. Any application filed before the Court who passed the
decree to send the papers to the Collector could only be considered as a
reminder to the Court to follow up its direction given under subrule (1) of
Rule 18. No period of limitation is provided for such a reminder, as the same
is not one contemplated by law. In sending the papers to the Collector, the
Court is not performing any judicial function; nor is it required to pass any
judicial order. Its function could at best be described as ministerial. It will be
inappropriate to call such an application an execution application. The Court
which passed the decree must be deemed to have become functus officio after
passing the decree.”
The question was referred to the Full Bench of Madras High Court in
Sree Rajah Mantripragada Venkataraghavan Rao Bahadur vs. Sri

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Rajah Mantripragada Venkata Hanumantha Rao Bahadur AIR (32)
1945 Madras 336, as to whether when a decree for partition of an undivided
estate assessed to the payment of revenue to the Government directs that a
partition shall be made by the Collector or any gazetted subordinate of his,
the Court which passes the decree has power to hear objections to the
partition as made by the Collector of his subordinate and modify that
decision ? The Full Bench answered the question in the negative, and it was
thus held
“The Court which has passed a decree for partition to which section 54
applies and has sent it to the Collector for the purpose of effecting the
partition has no power to hear objections to the partition made by the
Collector or his subordinate or to modify the partition. It was further
observed that the Court retains complete control over the partition
proceedings when it is a case of dividing immovable property which is not an
estate assessed to land revenue, but where the partition is of an estate
assessed to such revenue, the Court has no control over the Collector. Once
the Court has sent the decree to the Collector for action under section 54, the
matter passes entirely out of its hands.
In Sanjay Dinkar Asarkar vs. State of Maharashtra AIR 1986
SC 414, it was observed that under section 54 of the CPC, 1908, where a
decree 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 is passed, the partition of the estate or the separation of share is to
be made by the Collector or any gazetted officer subordinate to the Collector
deputed by him in that behalf. Rule 18 (1) of Order 20 of the code makes a
similar provision. Thus, in the case of a partition decree of land assessed to
the payment of revenue to the Government, the execution of such decree by
actually effecting partition and giving separate possession of a share of such
land is to be effected by the Collector or any gazetted subordinate deputed by
him in that behalf.
It is held in the case of Sindhu Machindra Jagtap vs. Collector,
Collector Office, Beed 2007(4) MH.L.J.180 (SB) , that the Collector is duty
bound to act upon the precept for effecting partition as per Section 54 of
CPC.
While dealing with question as to what is the extent of jurisdiction of a
Revenue officer while executing the decree sent to him under section 54 in
respect of the objections to the proposed partition, the Bombay High Court
Bench at Aurangabad in Khajabhai s/o Abdullasaheb Lukade and

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others vs. Mohanmed Ishaq s/o Abdullasaheb Lukade and others
1992(1) Mh.L.J.262, held that section 54 of the Code of CPC, 1908, carves
out an exception to the general rule that the Civil Courts would be competent
to execute the decree passed by the Civil Court. If the property or a part of it
is subjected to the land revenue, then the execution petition in respect of
such property will have to be sent to the Collector under section 54 of CPC.
Collector should execute the decree himself or appoint any gazetted officer
subordinate to him to execute the said decree of partition.
It was further held that if an agricultural land is to be partitioned, the
partition will have to make normally by measurement and cadastral
surveyor does the measurement. When Tahasildar or any other officer
subordinate to the Collector is entrusted with the job of execution of partition
decree or directs the District Inspector of Land Record or any officers
subordinate to him to measure the land and submit a report proposing the
partition, such cadastral surveyor or the measurement officer is nothing
more than a commissioner appointed under Order 26 Rule 13 of the CPC.
Report of the measuring officer is to be considered by the Tahasildar or the
officer executing the partition under section 54 and he has to apply his mind.
For the purposes of execution of a partition decree involving an estate
subjected to the land revenue, Tahasildar steps into the shoes of the Civil
Court executing the decree. Therefore, such officers are under a bounden
duty to apply their mind to report about the proposed partition and they
cannot refuse to exercise the jurisdiction vested in them. Normally a report
of the commissioner on partition decree need not be interfered into because
the report is based on local authority. But the jurisdiction vested in the
Court, who is with the Tahasildar or revenue officer and this jurisdiction
cannot be delegated to the measuring Inspectors.
In Paygonda Survgonda Patil and others vs. Jingonda
Survgonda Patil and others AIR 1968 Bombay 198, it was held that an
Order passed by the revenue officers under section 54 of the CPC, 1908,
would be subject to the right of appeal as given by the relevant provisions of
the Maharashtra Land Revenue Code, 1966. The Order of Tahasildar in such
situation is subject to appeal under section 247 of the Maharashtra Land
Revenue Code before the Sub Divisional officer as provided in Schedule E.
It would be desirable to quote the relevant provisions of section 85 of
the Maharashtra Land Revenue Code, 1966 and the rules, 1967, framed
there under.

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Section. 85. – Partition. _ (1) Subject to the provisions of the Bombay
Prevention of Fragmentation and Consolidation of Holdings Act, 1947, a
holding may be partitioned of the decree of a Civil Court or on application of
coholders in the manner hereinafter provided.
(2) If in holding there are more than one coholder, any such coholder
may apply to the Collector for a partition of his share in the holding;
Provided that, where any question as to title is raised, no such
partition shall be made until such question has been decided by a civil
suit
(3) (The Collector) may, after hearing the coholders, divide the
holding and apportion the assessment of the holding in accordance
with the rules made by the state Government under this Code.
(5) Expenses properly incurred in making partition of a holding
paying revenue to the state Government shall be recoverable as
revenue demand in such proportion as the Collector may think fit from
the coholders at whose request the partition is made, or from the
persons interested in the partition.
The Maharashtra land Revenue (Partition of Holdings) Rules, 1967.
Rule. 5. Mode of effecting partition: If the Collector does not reject
the application, he shall proceed to effect the partition either personally or
through such agency as he may appoint. So far as practicable, whole survey
numbers of subdivision of survey numbers shall be allotted and recourse to
further division as far as possible, be allotted to each party and care should
be taken to ensure that the productivity of the area allotted to each party is
in proportion to his share in the holding.
Rule. 6. Apportionment of assessment: The assessment of the
holding shall be distributed in proportion to the shares held, in the holding
by the coholders, so however that when the total assessment of all the sub
divisions of any survey number in such holding falls short of, or exceeds, the
whole assessment of that survey number, the difference shall be equitably
distributed over the subdivisions by addition or deduction in the assessment
so as to make the total equal to the assessment of the patent survey number.
Rule. 7. Procedure before confirmation of partition: After the
partition has been completed the Collector shall hear any objections, which
the parties may, make, and shall either amend or confirm the partition. The

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partition shall take effect from the commencement of the agricultural year
next following the date of such amendment or confirmation of the partition.
Rule. 8. Recovery of expenses of partition: Expenses of partition
shall be recoverable by the Collector from the parties in the manner provided
in subsection (5) of section 85.
Rule. 9. Partition under decree of Civil Court: When any holding is
ordered to be partitioned under decree or order of a Civil Court, the
provisions of Rule, 5, 6 and 7 shall apply in relation to partition a holding on
the application of a coholder.
Rule. 10. Saving: No holding shall be partitioned under the
provisions of these rules, if such partition results in creating a holding less in
extent than the standard area determined by the State Government under
the provisions of the Bombay Prevention of Fragmentation And
Consolidation of Holdings Act, 1947.
It is also necessary to point out that the Collector has got power under
Section 8AA, of the Bombay Prevention of Fragmentation and
Consolidation of Holdings Act, 1947, to fix up the amount of
compensations and its apportionment, in case it is found that there was not
enough land to provide for the shares of all the cosharers in accordance with
the provisions of subsection (1) of Section 8AA,of above Act.
In Baban Shamrao Menghare and Others Vs Madhukar S/o
Shamrao Menghare and Others, 2007 (1) MH.L.J. 306 , it has been held
that once preliminary decree for partition is passed in respect of land
assessable to the payment of land revenue and a precept is sent to collector,
collector takes action, all the proceedings would lie before the collector. The
remedy would be under Land Revenue Code. The only exception is that, if
certain subsequent event takes place, necessitating variation in the shape
then the Civil Court would have jurisdiction to pass another preliminary
decree for varying the shares of the parties.(Also see Arun Ashruba
Mhaske vs Atmaram Dattu Mhaske 2007 (4)MH.L.J. 157(SB). In
Anandrao Ganpatrao Belkhode and others vs. Aziz Haq Hazil Abdul
Bari deaceased L Rs, and others, 1997(3) Mh.L.J.419 (SB) (Nag), in a
suit for partition of agricultural lands and house property, preliminary
decree was passed by the Civil Court. The Tahasildar prepared the proposal
for partition and submitted it before the Civil Court prior to finalization of
the same. The Civil Judge by his Order directed allotment of particular land
to the share of the decree holders. The decree holders filed execution petition
and obtained possession of the land as allotted. It was held that the Civil

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Court had performed the act of partition of the property assessed to land
revenue and so also the Civil Court had given the delivery of possession. The
whole proceedings so far as the partition and delivery of possession of land
assessed to land revenue were concerned were misconceived and violative of
the statutory provisions of the law.
It was further held that it is well settled that in respect of the
agricultural lands, which are assessed to land revenue, if the partition is to
be effected and/or a share has to be carved out as per the decree of the Court,
it is the Collector or his subordinate gazetted officer, who can effect the said
partition and deliver the possession of the share as per the decree of the Court.
The provisions of section 54 of CPC are very much clear. The Civil Court was
functus officio after the precept was sent to the Tahasildar for effecting the
partition as per preliminary decree and there was no circumstance which
warranted any sort of interference in the act of partition, which was to be
completed by the Collector or his subordinate gazetted officer under section
54 of the CPC read with section 85 of the Maharashtra Land Revenue Code
and the rules framed there under. It was none of the business of the Civil
Court to give directions to allot specific land.
It was further observed that, the decree made in the form of Order 20,
Rule 18 (1), technically must be classified as a final decree and further
relying on the case of Ramabai (AIR 1945 Bom.338), and Ningappa
(AIR 1956 Bom.345), it was held that after a decree for partition of lands
assessed to revenue has been passed, the Court has nothing further to do
with the decree. The decree is to be executed and the partition is to be
effected by the Collector. There cannot, therefore, be any executing
proceedings before the Court in the case of such a decree.
Thus, it is seen that if such direction is given then it is usurped
illegality of Civil Court and in complete violation of the provisions of law the
jurisdiction of the revenue authority under section 54 by entertaining the
darkhast for issuing the possession warrant for delivery of possession. While
effecting the said partition the land in possession of the transferee, cannot be
said at this stage, will be maintained with the transferee by the Collector,
because the Collector will have to carry out the partition of the agricultural
lands, as provided in section 85 of the Maharashtra Land Revenue Code read
with the rules framed there under. While effecting the said partition, the
Collector is entitled to hear the transferee or third person in possession of
the land, but while effecting the equitable partition whether it will be
appropriate to keep the property of the transferee or said person is a

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question to be independently decided and considered by the Collector or his
subordinate gazetted officer.
In Bhimanguade vs. Hanmant Rungappa AIR 1918 Bom.206, it
was held that the Civil Court has no jurisdiction to reopen a partition made
by the Collector and has no power to examine his work or to direct him to
make a fresh partition.
In Lachhiram Jasram vs. Nanba Dhanaji AIR 1946 Nag. 353, it
was held that, “Section 54, read with Order XX, Rule 18, authorizes the Civil
Court only to declare the rights of the several parties interested in the
property and places the execution of the decree entirely in the hands of the
Collector. How the partition is to be made lies wholly within the authority of
the Collector. The Civil Court is functus officio after it declares the shares of
the parties and beyond that it is not concerned on the passing of the
preliminary decree affecting any estate assessed to the payment of revenue
to the crown and this was also held in Shriniwas Hanmant vs. Gurnath
Sriniwas (1891) ILR 15 Bom.527 and Sher Bahadur Singh vs. Ram
Narain Singh AIR 1945 Oudh.1.
In Bhagwansingh vs. Babu Shiv Prasad AIR 1974 MP 12, after
considering the expressed views of Bombay and Nagpur High Courts, it was
held that “A perusal of the provisions of section 54 and Order XX, Rule 18,
make it clear that the rule does not contemplate passing a final decree. All
that is required of a Civil Court in a case for partition of an undivided estate
assessed to the payment of land revenue to the Government, or for the
separate possession of a share of such an estate, is to only pass a preliminary
decree and declare the rights of the several parties who are interested in the
property and nothing more and give direction for such partition or separation
to be made by the Collector or any gazetted officer subordinate to the
Collector deputed by him in this behalf in accordance with such declaration
and with the provisions of Section 54 of the CPC. Thereafter the execution
has to be effected by the Collector. The reason is that the revenue authorities
are more conversant and better qualified to deal with such matters than the
Civil Court and the Collector executing the decree than by the Court would
better safeguard interest of the Government with regard to the revenue
assessed on the assets. The Civil Court after passing of the preliminary
decree for partition of an undivided estate assessed to the payment of land
revenue becomes functus officio and it would have no jurisdiction to act in
any manner thereafter so as to pass a final decree or deliver possession to a
party in accordance with the said decree.

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It is necessary to bear in mind that if the papers under Section 54 of
the CPC have been wrongly transmitted or directed and the partition has not
yet been done, made or commenced, the Court has power to recall the papers
transmitted to the Collector as held in N.R.Patil vs. Kariappa AIR 1965
Mysore.46. It is necessary to note that a Civil Court, however, order
partition even of revenue estate when the Collector refuses to make such
partition though it is not ordinarily open to Civil Court to effect partition of
revenue paying property as held in Sewakram vs. Chunnilal 1951
Nagpur Law Journal 40 (SB). The reason behind is that the effect has to
be given by the Court to the decree passed by it.
It is necessary to bear in mind that the transferees during the
pendency of 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
locus standi to appear before the Revenue Authorities in proceedings under
section 54 and ask for an equitable partition of the lands even though they
had not been impleaded as parties to the suit in the Civil Court. One of the
ways of protection the said estate of the transferees is to get the lands of the
transferees allotted to the share of the defendant against whom the
proceedings for partition are going on and the said act of partition can be
done without causing any prejudice to the plaintiff’s share. That all requires
to be considered by the Collector while effecting the partition as held in
Khemchand Shankar choudhary vs. Vishnu Hari Patil AIR 1983 SC
124,chandmal Dongarmal Shelot v. Shantilal Valchand Shelot AIR
2003 Bom 445,Mannubai Nandgopal Pande V. Shivprasad Nandlal
Pande 1979 Mh. L. J.252. (However the transferee cannot ask for reopening
of preliminary decree because such matters became final)
In Ramagounda Rudragowda Patil and vs. Smt Lagmavva and
others AIR 1985 Karnataka 83, it was held that the Civil Court only
declares the shares of the parties and the authority concern has to effect
partition of division by metes and bounds, as envisaged by Section 54 of CPC.
Collector is the authority concern to effect partition. Once the papers are sent
to the Collector, the Civil Court has no control over the proceedings taken by
the Collector. The Civil Court cannot direct the Collector to effect partition in
a particular manner after the papers were sent to him. Therefore, section
makes it absolutely clear that the execution is not at all contemplated in the
case of decrees for partition and division of agricultural lands. What the Civil
Court has to do is to transmit the papers to the Collector for actual partition
and possession. Therefore, all execution petitions are to be filed in the Civil
Court requesting the Court to transmit the papers to the Collector for
partition and possession of agricultural lands. They are not, in any sense of

14
the term execution petitions. They are only in the form of request to the court
to do its duty as enjoyed on it by section 54 of CPC.
In Muppana Halappa vs. Channeppa Halappa and another AIR
1964 Mysore.169, it was held that the powers and functions of Collector
under Section 54 are analogous to the powers and functions of the Civil
Court in the final decree proceedings for partition of properties other than an
estate.
The Collector in effecting the partition and separating the shares
performs a quasijudicial function and not a ministerial duty. He is bound to
hear the parties and consider their objections to the proposed partition
scheme before making it final. If he accepts or rejects the objections of any of
the parties to the partition scheme, he is bound to give reasons. His final
order effecting the partition and separating the shares is subject to correction
by the higher authorities on appeal under the provisions of the Bombay Land
Revenue Code or other analogous law.
In Kisan Bhikaji Dalvi since deceased through L Rs. Mohan
Kisan Dalvi and others vs.Krishanbai Maruti Dalvi 2000(4)Mh.
L.J.485(SB)(Aurangabad),it was held that when there is declaration of
shares in the partition suit with respect to lands, assessed to land revenue,
the job of the Civil Court come to an end by making such a declaration and
all further proceedings regarding effecting partition, may be by first
preparing a final decree and then by executing the same is to be carried out
by the Collector, as per the provisions of Section 54, CPC. The further steps
in such a suit are to be taken by the Collector and for that purpose, the Civil
Court has to transmit the papers to the Collector. Thereafter the Collector
has to take appropriate steps for partition, as per the directions issued in the
decree. It is not expected that the Civil Court prepare any final decree.
It was further held that the decree declaring shares of the parties in a
suit for partition is definitely a preliminary decree. When there is
preliminary decree with respect to land, assessable to land revenue, all
further proceedings are to be taken before the Collector or any gazetted
officer subordinate to him to whom the powers are delegated by the Collector
as per the provisions of Section 54 read with Order XX, Rule.18 CPC. The
Civil Court has no say in the matter as to how the land be partitioned
between the parties, so as to say for preparing the final decree. If the person
had any grievance about the order passed by the Collector, then he has a
remedy to file appeal before the authority under the Land Revenue Code, to
which appeal is maintainable against the order of the Collector and the

15
application in the Civil Court itself was not maintainable. The contention
that the decree was only a preliminary decree and therefore it could not be
executed without final decree is misconceived.
The decree cannot be effective without there being a final decree. Until
rights in the final decree proceedings are worked out and till a final decree in
that behalf is made there is no formal expression of the adjudication,
conclusively determining the rights of the parties with regard to the
properties for partition in terms of decree, so far as to entitle the party to
make an application for execution of final decree. The final decree has to
specify the division by metes and bounds and it needs to be engrossed on
requisite stamp papers. Until final decree determining rights of the parties
by metes and bounds is drawn up and engrossed on stamp papers supplied
by the parties, there is no executable final decree in the eye of law. Therefore
executing Court cannot receive the preliminary decree unless final decree is
passed as provided under Order 20, R.18 of CPC. (Also see Baban
Shamrao Menghare and Others Vs Madhukar Shamrao Menghare
and Others, 2007 (1) Mh.L.J. 306)
While dealing with the issue as to “ whether the execution
proceeding/darkhast, for execution of the decree passed under Order 20, R.
18 (1) of CPC, was tenable when no steps for execution thereof were taken by
the decreeholders within a period of twelve years from the date of passing
the decree, the High Court in Annasaheb Rajaram Nagane and another
vs. Rajaram Maruti Nagane and another 2001(3) Mh.L.J.53 (SB)
(Bom), after considering the decisions in D. M.Jacinto AIR 1939 Bom.454,
which has been approved by Full Bench of the same High Court in
Ramabai’s case AIR 1945 Bom.338, and the provisions of Section 54 and
Order 20, R.18 of CPC, it was held that the decree in question was
preliminary with respect to the lands assessable to revenue, all further
proceedings are to be taken before the Collector or any gazetted officer
subordinate to him, to whom the powers were delegated by the Collector as
per Section 54 read with Order 20, R. 18 of CPC (Also see Arun Ashruba
Mhaske vs. Atamaram Dattu Mhaske 2007 (4) MH.L.J.157(SB)).
It was further held that the Civil Court has no say in the matter as to
how the land is to be partitioned between the parties, so as to say, for
preparing final decree. It was also held that it was obligatory on the part of
the Civil Court to transfer papers to the Collector for effecting partition as per
declaration made in the judgment. All further proceedings with respect to
such decree are to be taken up by and before the Collector. As a matter of fact,
it was not necessary for the applicants/decreeholders to move or make an

16
application to the Court to send the decree to the Collector. It was the duty of
the Court to send necessary papers to the Collector as per the directions
given in the decree itself and at no point of time executable final decree took
birth, so as to attract the provisions of Limitation Act, holding that, an
application, even if made in the form of darkhast application with a prayer to
send decree papers to the Collector, was not an application in execution. In
such situation the provisions of Limitation Act did not attract.
In Annasaheb’s case referred to above, the decree in question for
partition and separate possession of the movable and immovable properties
inter alia including the agricultural lands could not be sent to Collector till
12th
August, 1986, though the suit was decreed on 27th
November. In
darkhast No. 19/1984 the decreeholders were directed to supply further
details as asked by D.I.L.R. on 21st
April 1988. The said darkhast was
dismissed since the decreeholders failed to supply the details. The second
darkhast no. 12 of 1998 also came to be dismissed interalia holding that the
said darkhast application was barred by limitation prescribed under Article
136, of the Limitation Act, 1963 and earlier order dismissing execution
application in default operated as res judicata. After considering the decision
in Shankar Balwant Lokhande vs. Chandrakant Shankar Lokhande,
AIR 1995 SC 1211 (DB)[Order 20,R.18 (2) and R. 7 and sec. 2 (2) CPC] and
in Bashiruddin vs. Binraj AIR 1987 Bom.235, it was held that the decree
relates to any immovable property and the partition or separation cannot be
conveniently made without further inquiry, then the Court may pass a
preliminary decree declaring the rights of several parties interested in the
property and giving such further direction as may be required. In a suit for
partition by a coparcener or cosharer, the Court is not expected to give
decree only for the plaintiffs share but it has to consider the shares of all the
heirs after making them parties and then to pass a preliminary decree. The
preliminary decree for partition is only a declaration of the rights of the
parties and the shares they have in the joint family or coparcenary property,
the subject matter of the suit. Final decree proceedings are mere
continuation of the preliminary decree proceedings and there is no
executable decree unless final decree proceedings are finally disposed of. The
executing court cannot receive executable decree unless final decree is
passed, drawn up and engrossed on the requisite stamped papers. Till such
time there is no executable decree so as to attract the provisions of the
Limitation Act, 1963. The final decree has to specify the division by metes
and bounds and it needs to be engrossed on the requisite stamped papers.
Until final determining rights of the parties by metes and bound is drawn up
and engrossed on stamp papers supplied by the parties, there is no
executable final decree in the eye of law. After final decree is passed and

17
direction is issued to pay stamp papers, it becomes executable or becomes an
instrument duly stamped. Thus, the condition precedent is to draw up a final
decree and then to engross it on stamp papers of requisite value. These two
acts put together constitute final decree crystallizing the rights of the parties
in terms of preliminary decree. Till such time, there is no executable final
decree as envisaged under Order 20, R. 18 of CPC and in this way the final
decree proceedings fall under the category of R. 18 (2) of Order 20. It was
further observed in Para no. 21 as follows;
21. Referring to the Civil Manual issued by this Court for guidance of
the Civil Courts, it is observed:
“This view finds support in the instructions contained in the Civil
Manual issued by this Court. In R.1 in Chapter 12 of Vol.I of the Manual (at
page 145, 1960,Edn.) preliminary decrees are divided into two classes, those
in which further action for final decrees is to be taken forthwith by the
Courts suo motu without any application from a party and those in which
subsequent proceedings for passing final decrees do not arise as a matter of
course. The former are to be treated as pending and shown as such in the
monthly returns and the records of such suits are to be retained in the
original Court until final decrees are passed therein. While the latter are to
be treated as disposed of as shown as such in the monthly returns and the
records should be forwarded to the record keeper of the District Court and
may be called for when subsequently required. A partition decree under
Order 20, R.18 (2) is included in the former class of preliminary decrees and
one under Order 20, R. 18 (1) is included in the latter class, be it noted, of
preliminary decree. These instructions are being followed since the Civil
Procedure Code of 1908 was enacted, and a partition decree, whether under
subrule (1) or under subrule (2), is classed as a preliminary decree.”
The Para 714 (h), of Chapter XXXVIII of Civil Manual,
(1986,Edn.) is relevant for this purpose. It reads thus; Suits in which, after
preliminary decrees are passed further action for final decrees is to be taken
by the Court without any application from a party (for example, decree under
Rules 12 (1) (b), (13), (15), (16) and 18 (2) of Order XX of the Civil Procedure
Code) should be treated as pending and shown a such in the quarterly
Returns. Suits in which, after preliminary decrees are passed, subsequent
proceedings for passing final decrees do not arise as a matter of course (for
example, decrees under Rules 12 (1)(C) and 18 (1) of Order XX and Rules 2 to
8 of Order XXXIV of the Civil Procedure Code), should be shown as disposed
of in the Quarterly Returns.

18
It is settled law that more than one preliminary decree can be
passed. In Phoolchand and another vs. Gopal Lal AIR 1967 SC 1470, it
was held that there is nothing in the code of Civil Procedure which prohibits
the passing of more than one preliminary decree if circumstances justify the
same and that it may be necessary to do so particularly in partition suits
when after the preliminary decree some parties die and shares of other
parties are thereby augmented. Suit is not over till the final decree is passed
and the Court has jurisdiction to decide all disputes that may arise after the
preliminary decree particularly in partition suit due to deaths of some of the
parties. (Also see A.Thakurdas vs. A.Venilal AIR 1977 Kant.60). However
this can only be done so long as the final decree has not been passed. (Kasi
vs. Ramanathan (1947) 2 Mad L.J. 523, Parshuram vs. Hirabai AIR
1957 Bom.59, Raja Peary Mohan vs. Manohar AIR 1924 Cal
160,Bhavani Shivaji Lodaya and others VS. Khimji deceased through
his LRs Vinod Khimji Lodaya and another 1993(2) Mh.L.J. 1035)
It is also settled law that more than one final decree can be passed.
(AIR 1995 SC 1211, AIR 1980 Pat. 201(FB). In suits, which contemplate
the making of two decrees –a preliminary decree and a final decree –, the
decree, which would be executable, would be final decree. But the finality of
a decree or decision does not necessarily depend upon its being executable.
The legislature in its wisdom has thought that the suits of certain types
should be decided in stages and though the suit in such cases can be
regarded as fully and completely decided only after a final decree is made,
the decision of the Court arrived at the earlier stage also has a finality
attached to it as held in Venkata Reddy and others vs. Pethi Reddy AIR
1963 SC 992 (Four JJ). In partition suit comprising various items more
than one final decree can be passed but in respect of each item there can be
only one final decree. (B.N.Thiagarajan and others vs. B.N.Sundarvelu
AIR 1972 Madras 216)
The decrees passed under both clauses contemplate partition or
separation to be made to enable the parties to realize the fruits of the decree.
This is done by passing final decree if the decree for partition is made under
O.20, R.18 (2) in respect of properties other than those in respect of which
revenue is payable to the Government. The same object is achieved in respect
of the partition decree made under O.20, R.18 (1) by sending the said decree
to the collector for effecting partition in respect of the estate assessed to
payment of the land revenue to the Government. (Shivaramaiah vs.
Mallikarjunaiah and others AIR 1978 Kant 76 (DB).

19
In the case of Shankar (AIR 1995 SC 1211), it was held that the
decree is envisaged in sub rule (2) of Rule 18 of Order 20; it was only
preliminary decree declaring the rights of the parties with power to the
Court to give further directions in that behalf. In that case with the passing
of the final decree in respect of the share of first respondent, the rights of the
parties in respect of other properties have not been crystallized and no final
decree dividing the properties by metes and bounds was passed nor any
application was made to divide the properties in terms of the shares of the
parties declared in the preliminary decree. It was further held that it has
been seen that after passing of preliminary decree for partition the decree
cannot be made effective without a final decree. In that case the final decree
made in favour of the first respondent is only partial to the extent of his 1/6th
right without any demarcation or division of the properties. It was thus held
that until the rights in the final decree proceedings are worked out qua all
and till a final decree in that behalf is made, there is no formal expression of
the adjudication conclusively determining the rights of the parties with
regard to the properties for partition in terms of the declaration of 1/6th
and
5/6th
shares of the first respondent and the appellants so as to entitle the
party to make an application for execution of the final order.
It was further held that until the final decree determining the rights
of the parties by metes and bounds is drawn up and engrossed on stamped
paper(s) supplied by the parties, there is no executable decree. In this behalf,
it is necessary to note that Section 2(m) of the Bombay Stamp Act, 1958, as
amended by the Local Act, provides that a decree of Civil Court is required to
be stamped as per Article 46 in Schedule I. Section 34 thereof lays down that
“no instrument chargeable with duty shall be admitted in evidence for any
purpose by any person having by law or consent of parties authority to
receive evidence, or shall be acted upon, registered or authenticated by any
such person or by any public officer unless such instrument is duly stamped”.
It is also necessary to note the provisions of Section 51 Bombay
Court Fees Act, 1959 (as amendment by Mah.Act No. 34 of 1994)
Reduction of court fee from amount of stamp duty payable on final order of
partition, which reads as follows. –
Notwithstanding anything contained in the Bombay Stamp Act, 1958,
where court fee is paid in suit for partition in accordance with the provisions
of clause (vii) of Section 6 of this Act, the stamp duty shall be payable on a
final Order for effecting a partition passed by the Revenue Authority or any
civil court under Article 46 of Schedule I to the Bombay Stamp Act, 1958,
shall be reduced by the amount of the court fee paid in such suit.

20
Note. Section 51of the Bombay Court Fees Act, 1959, before
amendment provided that no stamp duty is payable where court fee is paid
in a suit for partition. By Bombay Court Fees (Amendment) Act, 1994, (34 of
1994) it is now provided that on a final Order for effecting a partition in any
civil suit, stamp duty should be payable but it should be reduced by the
amount paid as court fee in such suit of partition.
In view of the abovecited decisions, it is clear that –
1. There cannot be an application for execution of the decree as
provided under Order 20, Rule 18(1) for effecting partition of lands
assessed to payment of revenue before Civil Court. (AIR 1945
Bom.338, 2001(3) Mh.L.J.53, 1996(2) Mh.L.J. 40)
2. The preliminary decree is one, which declares the rights and
liabilities of the parties leaving the actual result to be worked out in
further proceeding (AIR 1995 SC 1211, AIR 2003 SC 3322).
3. A decree may be partly preliminary and partly final. There can
be more than one preliminary decree in a suit. Similarly, there can be
more than one final decree in a suit. (AIR 2003 SC 3322)
4. After passing of preliminary decree for partition as provided
under Order 20, R.18 (2), the decree cannot be made effective without
there being a final decree. (2001(3) MH.L.J.53, AIR 1995 SC 1211)
5. Until rights in the final decree proceedings are worked out and
till a final decree in that behalf is made as provided under Order 20,
R. 18(2), there is no formal expression of the adjudication conclusively
determining the rights of the parties with regard to the properties for
partition in terms of decree so as to entitle the party to make an
application for execution of final decree. (2001(3) MH.L.J.53, Para
714(h), Civil Manual, 1986, AIR 1995 SC 1211,O.26, R.14)
6. Final decree as provided under Order 20, R. 18(2) has to specify
the division by metes and bounds and has to be engrossed on
requisite stamp papers after which it becomes executable, but it
is subject to the provisions of Section 51 of Bombay Court Fees
Act, 1959 (as amendment by Mah. Act No.34of1994). Because
the Court retains complete control over the partition
proceedings when it is a case of dividing immovable property,
which is not estate, assessed to land revenue till preparation of
final decree, and ordered to be engrossed on requisite stamp.

21
(2001(3) Mh.L.J.53, AIR 1945 Mad. 336, AIR 1995 SC 1211,Sec.
51,Bom Court Fees Act (as amended in 1994), Sec.2 (m) and
Art.46 of Bombay Stamp Act, 1958).
7. Preliminary decree as provided under Order 20,R.18 (1) for
partition and separate possession of the property assessed to payment
of land revenue, the partition be effected in term of Sec. 54 of the CPC
by the Collector, who performs a quasijudicial function and
considered the objections of the parties including transferee to the
proposed partition scheme before making it final which would be
subject to correction by the higher authority on appeal under the
provisions of the Maharashtra Land Revenue Code,1966,and the
Maharashtra Land Revenue (Partition of Holdings) Rules, 1967.The
Civil Court has nothing to do with decree and courts duties are
finished. It means the Civil Court has no jurisdiction to pass the final
decree and execute the same after the matter was referred to the
Collector under Section 54 read with O.20, R.18 (1) of the CPC. (AIR
1986 SC 414, 1992(1) Mh.L.J. 262,AIR 1968 Bom.198, AIR 1939
Bom.454, AIR 1946 Nag 353,AIR 1974 MP 12,AIR 1964 Mys.169, AIR
1983 SC 124, 2000(4) Mh.L.J.485, 1997(3) Mh.L.J.419). AIR 1956Bom.
345,AIR 1945 Bom.338, 2001(3) Mh.L.J.53, AIR 1984 P&H 240,AIR
2003 Bom.445, 1979 Mh.L.J.252)
8. A merely declaratory decree, though final, is by very its nature
incapable of execution, so too, is a decree under Order 20, R.18 (1) and
so after passing of preliminary decree as provided under Section 54
read with O.20, R.18 (1) CPC, it is the duty of the Court to send the
necessary papers to the Collector as per the directions given in the
decree itself which must be deemed to be a part of the decree. It is not
necessary for the decreeholders to move or make any application to
the court to send the decree to the Collector and so the decree is final
so far as Civil Courts are concerned. But the decreeholder to pay costs
necessary for the purpose and on filling of requisite copies. (AIR 1945
Bom.338, 1996 (2) Mh.L.J.40, 2001(3) Mh.L.J.53, AIR 1959 Mys.233,
2000(4) Mh.L.J.485, AIR 1963 SC 992)
9. The steps taken by the decreeholder in this regard is just to
remind the Court of its duty and such application is really nothing but
a request to the Judge or Court to discharge his ministerial duty and
not execution of the decree and so Art. 182 (new 136) of Limitation Act
are not attracted. (AIR 1939 Bom.454, 2001(3) Mh.L.J.53, AIR 1959
Mys.233, 1996(2) Mh.L.J.40)

22
10. Civil Court order partition even of revenue paying estate when
the Collector refuses to make such partition or contravenes the
decreetal Order, or transgresses the law or otherwise acts ultravires
and Civil Court retains control in that situation only. (AIR1945
Bom.338, AIR 1965 Mys.46, 1997(3) Mh.L.J.419, AIR 1956 Bom. 345,
2003(2) Mh.L.J.216).
11.         After preliminary decrees are passed    further action for final
decrees is to be taken by the court without any application from a
party (e.g. decree under Rules12 (1)(b), 13, 15, 16 and 18(2) of Order
20,CPC) should be treated as pending and  shown as such in the
quarterly returns. (714(h) Civil Manual, 1986, 2001(3) Mh.L.J.53)
12.         Suits in which after preliminary decrees are passed, subsequent
proceedings for passing decrees do not arise as a matter of course (e.g.
decree under Rr.12 (1) C and R.18 (1) of Order 20, and Rules 2 to 8 of
O. 34 CPC) should be shown as disposed of in the quarterly
returns. (2001(3) Mh.L.J.53, Para 714 (h) Civil Manual, 1986)
13.In case there is possibility of any change in the extent of shares
of the parties due to subsequent events, the parties may again
approach the Civil Court for making the necessary change in
the declaration of shares made earlier. In that event, another
decree would be passed by the court declaring the shares of
parties in view of the changed circumstances and the said
decree would be send to the Collector for effecting partition of
the agricultural lands. (AIR 1967 SC 1470, 1993(2)
Mh.L.J.1035).
14.If the property is impartible it is open to apply for placing the
suit for final decree for auctioning the property.(Hasham Abbas
Sayyed vs.Usman Abbas Sayyed (2007) 2 SCC 355)
At this stage it is necessary to point out the case of Bhoop
Singh vs. Ram Singh Major and others 1995(2) Mh.L.J.916 (Two
JJ)(Supreme Court) , K. Raghunandan & Ors vs. Ali Hussain
Sabir & Ors. 2008 DGLS(Soft) 672(SC)(Two JJ) wherein the
provisions of Section 17(2)(vi) of Registration Act has been considered.
The petitioner is one of the defendants in the suit. The plaintiffs are
heirs of one Nand Ram, who is one of the five sons of one Jeevan Ram.
The petitioner belongs to the branch of Rakha Ram, another son of
Jeevan Ram. Ganpat was a son of Nanha Ram, still another son of

23
Jeevan Ram. The present suit was filed claiming onethird share in
the suit land as heirs of Jeevan Ram. The petitioner’s contention was
that in view of the order passed in suit no. 215/1973, filed by him
declaring that the plaintiff will be the owner in possession from today
in lieu of the defendant after his death and the plaintiff deserves his
name to be incorporated as such in the revenue papers, the dispute
does not survive and he alone is entitled to be in possession of the suit
land. The suit was dismissed and confirmed up to High Court
observing that the aforesaid decree not having been registered, the
same could not have conferred any right on the petitioner. Whether on
the strength of the decree passed in suit No. 215/73, the petitioner
could sustain his case as put up in his written statement in the
present suit despite the decree not have been registered, the Court
held that the petitioner cannot sustain his case on two reasons,
namely:
1) The decree having purported to create right or title in the
plaintiff for the first time that is not being a declaration of
preexisting right did require registration. It may also be
pointed out that the first suit cannot really be said to have
decreed on the basis of compromise, as the suit was decreed
“in view of the written statement filed by the defendant
admitting the claim of the plaintiff to be correct.” Decreeing
of suit in such a situation is covered by Order 12, Rule 6,
and not by Order 23, Rule 3, which deals with compromise
of suit, whereas the former is on the subject of judgment on
admissions.
2) A perusal of the impugned judgment shows that the
first appellate Court held the decree in question as
‘collusive’ as it was with a view to defeat the right of others
who had bona fide claim over the property of Ganpat.
Learned Judge of the High Court also took the same view.
The petition was dismissed.
While dealing with the question of compulsorily registrable
of order or decree of Court in the case of preexisting right and
creating new right in immovable property of the value of
Rs.100/ or upwards, the Court held that it would be the duty of
the Court to examine in each case whether the parties have pre
existing right to the immovable property, or whether under the
order or decree of the Court one party having right, title or

24
interest therein agreed or suffered to extinguish the same and
created right title or interest in praesenti in immovable property
of the value of Rs.100 or upwards in favour of other party for
the first time, either by compromise or pretended consent. If
latter is the position, the document is compulsorily registrable.
While considering applicability or otherwise of the exception in
clause (vi) of section 17(2) of the Registration Act, the Court has
summarized the legal position of clause (vi) as below:
a) Compromise decree if bona fide, in the sense that the
compromise is not a device to obviate payment of stamp duty
and frustrate the law relating to registration, would not require
registration. In a converse situation, it would require
registration. (AIR 1981 Bom.52)
b) If the compromise decree were to create for the first
time right, title or interest in immovable property of the value of
Rs.100 or upwards in favour of any party to the suit the decree
or order would require registration.
c) If the decree were not to attract any of the clauses of
subsection (1) of section 17,of the Registration Act, the decree
would not require registration. (AIR 1919 PC 79, AIR 1951 SC
11)
d) If the decree were not to embody the terms of
compromise, benefit from the terms of compromise cannot be
derived, even if a suit were to be disposed of because of the
compromise in question. (AIR 1944 Lah. 394)
e) If the property dealt with by the decree were not the
“subjectmatter of the suit or proceeding”, clause (vi) of sub
section (2) would not operate, because of the amendment of this
clause by Act 21 of 1929.

Preliminary decree for partition (article)

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