Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Chakradhari Sharan Singh, J.
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Chakradhari Sharan Singh, J.
Acts
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This opinion arises from an application under Article 227 of the Constitution of India challenging an order passed in Final Decree No. 106/70 by the Sub-Judge-I, Samastipur dated 28.2.2009. The core dispute originates from Partition Suit P.S. Nos. 106 of 1970/39 of 1980, in which a judgment dated 31.3.1984 and a preliminary decree (drawn on 21.4.1984) were passed. The petitioner in the present writ was defendant No. 5 in the partition suit and is challenging the final decree proceeding order that carved out a patti in favour of respondents (purchasers from a woman identified as Jogmaya @ Yogmaya Devi, originally impleaded as an intervener/defendant).

Key procedural milestones recorded in the opinion:

  • Order dated 7.12.1976: An application on behalf of Jogmaya @ Yogmaya Devi was allowed and she was ordered to be added as an intervener/defendant in the partition suit.
  • Judgment dated 31.3.1984 and preliminary decree drawn on 21.4.1984: The judgment and preliminary decree did not, apparently due to a clerical omission, include Jogmaya's name in the cause title or decree despite her earlier impleadment.
  • Application(s) in final decree proceedings: Applicants (purchasers from Jogmaya) sought carving out of a separate patti on the basis of registered sale deeds dated 8.12.2003 and to be impleaded in the final decree proceedings; impleadment was ordered on 8.4.2005 and, by an order dated 28.2.2009, the court below directed the Survey Pleader/Commissioner to carve out the share (patti) of the applicants from the patti of Jogmaya.
  • Civil revision challenge: A civil revision against the earlier order allowing impleadment was dismissed by this Court vide order dated 22.2.2006 (C.R. No. 1215/2005), and the opinion records further correction orders in the trial court's record relating to inclusion of Jogmaya's name in the plaint and decree during final decree proceedings.

Legal Issues Presented

  1. Whether, when a clerical mistake in a judgment or preliminary decree is detected during preparation of the final decree in a partition suit, the final decree can be at variance with the earlier judgment (i.e., whether the court may vary the preliminary decree in final decree proceedings to correct such mistake).
  2. Whether a share can be allotted in the final decree to a person whose name was omitted from the preliminary decree due to an apparent clerical mistake.
  3. Whether transfers made by a party during the pendency of the suit (specifically transfers by Jogmaya to purchasers) are hit by the doctrine of lis pendens (transfers pendente lite), and the implications of that for impleadment of those purchasers in final decree proceedings.

Arguments of the Parties

Petitioner's Arguments

  • No share was allotted to Jogmaya @ Yogmaya Devi in the judgment dated 31.3.1984 and the preliminary decree; therefore, no share could be carved out for her in the final decree as that would be at variance with the judgment.
  • Any transfer made by Jogmaya during the pendency of the suit in favour of the interveners/purchasers is hit by the doctrine of lis pendens (i.e., transfers pendente lite) and should not sustain a claim to a carved-out patti in final decree proceedings.

Respondents' Arguments (Contestants / Purchasers)

  • The respondents contend that the petitioner himself admitted that Jogmaya belonged to the family of the plaintiffs/defendants and was the widow of a predeceased son of late Sone Lal Rai, implying she was entitled to a share; this submission is recorded from an interlocutory application referred to in the opinion.
  • The court below had, during final decree proceedings, taken into account earlier orders (including the 7.12.1976 order of impleadment) and observed that claims/counter claims relating to the suit land would be decided together; thus, the impugned order carving out patti did not require interference.
  • The purchasers from Jogmaya were impleaded and their prayer for carving out patti was allowed on the ground that they had purchased specific land by registered deeds and are transferees pendente lite whose interests need to be protected by being on record.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
S. Sai Reddy v. S. Narayana Reddy, (1991) 3 SCC 647 Principle that a partition is not complete until a final decree is passed and allottees are put in possession; the preliminary decree which only determines shares can be varied before final decree because shares are liable to be varied on account of intervening events. The court relied on this authority to hold that shares declared in a preliminary decree are not immutable and can be varied in final decree proceedings; this supported the proposition that correction or variation is permissible to reflect intervening events or to rectify clerical omission.
Prema v. Nanje Gowda, (2011) 6 SCC 462 Application of the S. Sai Reddy principle: that in partition suits a preliminary decree can be varied in final proceedings depending on facts and circumstances (specifically relied upon where statutory change intervened between preliminary and final decree). The court relied upon this case as reinforcing that a preliminary decree can be varied at the stage of final decree; the opinion cites Prema as authority supporting the trial court's power to correct or vary the preliminary decree during final decree proceedings.

Court's Reasoning and Analysis

The court's reasoning proceeds in a stepwise manner grounded on the facts as recorded in the opinion and the applicable procedural provisions and precedents:

  1. Facts and clerical omission: The opinion records (and treats as undisputed) that although Jogmaya @ Yogmaya Devi had been impleaded as an intervener/defendant by order dated 7.12.1976, her name was omitted from the cause title of the plaint and consequently from the judgment and preliminary decree due to a clerical mistake. The court notes that the court below later directed inclusion of her name in the decree in the course of final decree proceedings (the opinion refers to an order of correction dated 17.12.2004 and elsewhere refers to an order dated 8.5.2004 as the correction which attained finality; a civil revision against the correction was dismissed on 22.2.2006).
  2. Statutory powers to correct/modify: The court examined Sections 151, 152 and 153 of the Code of Civil Procedure. It summarized their effect:
    • Section 151: power to make orders necessary for ends of justice and to prevent abuse of process;
    • Section 152: power to correct clerical or arithmetical mistakes or accidental slips or omissions in judgments, decrees or orders;
    • Section 153: power to amend defects or errors in any proceeding to determine the real question or issue raised.
  3. Precedential support for variation at final decree stage: The court relied on S. Sai Reddy v. Narayana Reddy for the principle that a preliminary decree declaring shares does not effectuate a complete partition and that shares are liable to variation pending the final decree. The court further relied on Prema v. Nanje Gowda which applied the same principle to uphold that a preliminary decree can be varied in final proceedings depending on facts and circumstances.
  4. Application to present facts: Given that the omission of Jogmaya's name was a clerical mistake and that the court below had corrected the record during final decree proceedings (a correction that this Court declined to upset on revision), the court reasoned that the trial court had the power to vary the preliminary decree in the final decree proceedings to give Jogmaya her rightful share. The court also observed that purchasers from Jogmaya (transferees pendente lite) ought to be on record to protect their interest; therefore their impleadment in the final decree proceedings was justified.
  5. Conclusion of analysis: Applying the procedural powers in the Code and the Supreme Court authorities, and treating the facts as undisputed, the court concluded there was no infirmity in the impugned order directing carving out of the patti in the name of Jogmaya and allowing impleadment of purchasers; accordingly, the writ application failed.

Holding and Implications

Holding: The writ application (CWJC No. 6099/2013 as recorded in the opinion) is dismissed; the impugned order dated 28.2.2009 passed by the court below is upheld.

Implications and direct consequences:

  • The court found that the omission of Jogmaya @ Yogmaya Devi's name from the preliminary decree was a clerical mistake which the trial court legitimately corrected in final decree proceedings; the correction has been treated as final insofar as a civil revision against it was dismissed by this Court on 22.2.2006 (as recorded in the opinion).
  • On that basis the court upheld the carving out of a patti in the name of Jogmaya and the direction to the Survey Pleader/Commissioner to effect the same; the court also upheld the impleadment of purchasers from Jogmaya in final decree proceedings to protect their transferee pendente lite interests.
  • The opinion applies existing Supreme Court principles (S. Sai Reddy and Prema) to the facts; it does not purport to lay down a new precedent but applies established authority to permit variation/correction of preliminary decrees at the final decree stage where justified by clerical mistake or intervening events.

Disposition

For the reasons stated in the opinion, the petition is dismissed and the impugned order of the court below stands affirmed; the order directing carving out patti in favour of Jogmaya and allowing impleadment of purchasers is sustained.

Show full summary ...

    Rajeshwar Rai v. Smt. Meera Kumari & Ors.

    1. Heard Mr. Partha Sarthy, learned counsel for the petitioner and Mr. P.N Shahi, learned senior counsel appearing on behalf of respondent Nos. 1 to 3 and 38.

    2. The question which has been raised in the present application under Ar ticle 227 of the Constitution of India is as to whether a final decree, in-any circum stance, be at variance with the judgement of the court in a partition suit, if an appar ent clerical mistake is detected in the judgment in course of preparation of final decree by the court. The petitioner was defendant No. 5 before the court below. Respondent 1st set claim to have purchased the share of Jogmaya @ Yogmaya Devi (original re spondent No. 40, since deceased) during the pendency of partition suit and have, in that capacity, been impleaded as intervener defendants in the court below. In a Final Decree proceeding respondent 1st set file an application dated 19.8.2006 of carving out patti of lands purchased from the said Jogmaya which has been allowed by an order dated 28.2.2009 in Final Decree No. 106/70 by learned Sub-Judge-I, Samastipur. The said order dated 28.2.2009 is under challenge in the present application under Article 227 of the Constitution of India on the ground that no share has been allotted to Jogmaya in the preliminary decree and no share can, therefore,. be allotted in final decree proceeding as it will be at variance with the judgment.

    3. The facts of the case are not in dispute.

    4. A partition suit being P.S Nos. 106 of 1970/39 of 1980 was filed by the plaintiffs for partition of their share in the suit land. The petitioner herein is plaintiff No. 5 in the said suit. By judgment dated 31.3.1984 passed in the said partition suit, learned 2nd Additional Sub-Judge, Samastipur decreed, the suit on contest with cost against the defendants. A pre liminary decree was drawn up on 21.4.1984 accordingly.

    5. Jogmaya @ Yogmaya Devi (since deceased) originally arrayed as respond ent No. 40 in the present application was not a party to the said Partition Suit No. 106 of 1970. Vide order dated 7.12.1976, an application filed on her behalf for intervention was allowed and she ordered to be added as intervener/defendant No. 4 in the said suit. In spite of the fact that Yogmaya Devi was impleaded as a party, her name did not figure in the judgment or the decree passed by learned trial court. It appears that respondents 1st set to the present application under Article 227 of the Constitution of India, filed a petition for a direction to the Pleader Commissioner, before the court below, for carving out separate patti in their favour on the basis that they had purchased land measuring 4 kathas and 10 dhurs through two registered sale deeds dated 8.12.2003 from said Jogmaya. They sought for their addition as party in the final decree proceeding. By an order dated 8.4.2005, the application for their impleadment was allowed by the court below. As regards the other prayer, to carve out separate patti on the basis of sale deeds in their favour, the court below declined observing that they would be entitled to get it from patti of their vendor Yogmaya Devi. A civil revision petition against the said order dated 8.4.2005 came to be rejected by this court vide order dated 22.2.2006 passed in C.R No. 1215/2005. Another petition was filed on behalf of respondents 1st set before the court below, that is, purchasers from Yogmaya Devi, to carve out the patti of lands, as detailed in schedule-1 of the petition. The prayer has been allowed by order dated 28.2.2009 whereby the court below has directed the Survey Knowing Pleader Commissioner to carve out share of the applicants from patti of Yogmaya Devi. These facts have been taken out from the pleadings of the present writ application.

    6. The main contention, which has been raised on behalf of the petitioner in the present application, is that in the judgment passed by learned trial court dated 31.3.1984, no share was given to Jogmaya @ Yogmaya Devi and, therefore, no share could be carved out in favour of Jogmaya @ Yogmaya Devi on the basis of the said judgement. Secondly, it has been argued, that any transfer made by said Yogmaya Devi during the pendency of the suit to the interveners/defendants/respondehts 1st set is hit by doctrine of lis pendens.

    7. A counter affidavit has been filed on behalf of contesting respondents 1, 2, 3 and 38. Paragraphs 8 and 9 of the said counter affidavit reads thus:—

    “8. That, however, the suit in question was decreed ex-parte. However, in ignorance of order dated 7.12.1976, the name of Jogmaya Devi @ Yogmaya Devi did not find mention either in the plaint or in the preliminary decree which was passed on. 21.4.1984

    9. That subsequently, at the instance of the answering respondents in an application filed under Sections 151 and 152 of C.P.C on 11.6.2004 and the rejoinder filed thereto by decree holder on 27.7.2004, by order dated 17.12.2004, the learned Trial Court in course of final decree proceeding ordered for addition her name in the plaint as also in the preliminary decree in terms of earlier order passed on 7.12.1976”

    8. Learned senior counsel appearing on behalf of these respondents has con tended that the petitioner himself has ad mitted the fact that Yogmaya Devi be longed to the family of plaintiffs/defend ants first party and has referred to the interlocutory application being I.A No. 6478 of 2009 filed in Civil Revision No. 643 of 2009 which came to be converted into an application under Article 227 of the Constitution of India numbered as CWJC No. 6099/2013 (the present application). In the said application the petitioner admitted that Yogmaya Devi, who died on 16.12.2003, was widow of a predeceased son of late Sone Lal Rai whose other sons were there on record. If has been specifically contended that the fact that Yogmaya Devi was wife of pre deceased son (Late Batuk Rai) of late Sone Lal Rai is admitted and, therefore, share in her name has to be carved out during the final decree. Referring to the impugned order dated 28.2.2009 Mr. Shahi, learned senior counsel, has submitted that the court below has taken into account various earlier orders passed by the court and observed finally that all claims and counter claims relating to the suit land would be taken up and decided at one time. He has submitted that the impugned order does not require interference by this court, in the facts and circumstances of the case.

    9. From the facts narrated above, which are not in dispute, it is clear that non-inclusion of the name of original respondent No. 40, Jogmaya @ Yogmaya Devi (since deceased) in the preliminary decree, prepared on the basis of judgment dated 31.3.1984, was a result of clerical mistake inasmuch as though, she came to be impleaded as party defendant in the suit before the court below vide order dated 7.12.1976, her name, however, could not be incorporated in the cause title of the plaint pursuant to the said order dated 7.12.1976 Such mistake remained in the judgment and preliminary decree also. By an order dated 17.12.2004 the court below corrected the mistake by directing inclusion of her name in the decree as intervener-defendant No. 25.

    10. In the present case, power of the court below to vary the preliminary decree in course of final decree proceed ing needs to be examined with reference to Sections 151, 152 and 153. of the Code of Civil Procedure (“in short the Code”) and the Supreme Court judg ments reported in (2011) 6 SCC 462 (Prema v. Nanje Gowda) as well as (1991) 3 SCC 647 (S. Sai Reddy v. S. Narayana Reddy), reliance upon which has been placed by learned sen-for counsel appearing for the contesting respondents.

    11. Section 151 of the Code enables the court to make such Orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Section 152 of the Code confers power upon the courts to correct at any-time any clerical or arithmetical mistake in the judgments, decrees or orders or errors arising therein from any accidental slip of omission. Section 153 of the Code con fers power upon the court to amend any defect or error in any proceeding in a suit and provides that all necessary amend ments shall be made for the purpose of “determining the real question or issue raised by or depending on such proceeding”.

    12. The stage when a partition is complete after passing of the judgment and preliminary decree has been consid ered by the Supreme Court in the case of S. Sai Reddy v. Narayana Reddy (supra) where the court held that unless and until a final decree is passed and allottees of the shares are put in possession of the respective property, the partition is not complete. It further held that pending the final decree, the shares them selves are liable to be varied on account of intervening events. The Supreme Court in that case was considering a statutory change by the introduction of Section 29-A in the Hindu Succession Act during the pendency of final decree proceeding, that is, after passing of the preliminary decree and before preparation of final decree. The Supreme Court in such circumstances, in the above noted case, held that the trial court was bound to implement the statutory rights conferred on the daughters even after passing of the preliminary decree. The Supreme Court in paragraph-7 of the judgment held as follows:—

    “When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of intervening events.”

    13. The court further held that a preliminary decree which merely declares shares, which are themselves liable to change does not bring about any irreversible situation.

    14. The Supreme Court in case of Prema v. Nanje Gowda (supra) relying upon the said judgment in the case of S. Sai Reddy v. Narayana Reddy held that in a partition suit a preliminary decree can be varied in the final proceedings depending upon the facts and circumstances.

    15. In the present case, in view of the facts noted above, there can be no dispute over the fact that original respondent No. 40, namely, Jogmaya Yogmaya Devi was entitled for her share in the joint family property. The facts as stated above, indicate that her name was wrongly, left out in the preliminary decree initially which was subsequently corrected by the court's order dated 8.5.2004 This correction has attained, finality as a Civil Revision petition filed against the said order dated 8.5.2004 has been dismissed by this court vide order dated 22.2.2006 The plea raised on behalf of the petitioner that no share could be carved out in favour of Jogmaya @ Yogmaya Devi cannot be accepted. In my opinion, the court below has rightly ordered for carving parr/in the name of Jogmaya @ Yogmaya Devi by the im pugned order. For the same reason, the application filed by the purchasers from Jogmaya @ Yogmaya Devi for their impleadment as party to the final decree proceeding has rightly been, allowed by the court by the impugned order, as, be ing transferees pendente lite they are required to be on record so as to protect their interest.

    16. For, the reasons above, I do not find any infirmity in the impugned order. This writ application is, accordingly, dismissed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Rajeshwar Rai v. Smt. Meera Kumari & Ors.
    (Aug 12, 2013)