Holding

Section 97 CPC is not a bar to amendment of a decree to rectify a mistake, and courts may consider subsequent events to add property in a partition suit.

Summary

The case involved a partition suit concerning a residential house and the business of Bombay Cycle Company. The trial court passed a preliminary decree granting each party a one‑third share in the house, but later the parties sought to include the business assets in the partition. The High Court set aside the decree, holding that Section 97 of the Code of Civil Procedure barred the addition of any property after a preliminary decree became final. On appeal, the Supreme Court held that a preliminary decree is not immutable; the court may amend it to rectify a mistake and may consider subsequent events to achieve complete justice. Accordingly, Section 97 CPC does not preclude amendment of a decree, and the appellate court set aside the High Court’s order, allowing the appeal.

Issues considered

Whether a property or business can be added to the list of assets for partition after a preliminary decree has been passed.
Whether Section 97 of the Code of Civil Procedure, 1908 bars amendment of a preliminary decree.
Whether the court has the power to amend a decree to rectify a mistake of the court.

Legislation cited

Arbitration Act, 1940s. 21
Code of Civil Procedure, 1908s. 152, s. 21, s. 2(2), s. 97

Subjects

partition suitpreliminary decreeamendment of decreeSection 97 CPCmistake of courtcivil proceduredecree definition

Judgment

[2008] 16 S.C.R. 904

A S. SATNAM SINGH & ORS.
II.
SURENDER KAUR & ANR.
(Civil Appeal No. 7008 of 2008)

·DECEMBER 02, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

.Code of Ciltil Procedure, 1908 - ss. 2(2) and 97 -
Partition suit =.. ·Inclusion of property in, after passing of
C preliminary decree - Permissibility - Held: Ordinarily a suit
. for partial partition may not be entertained - But to do
complete justice, subsequent events after passing of
preliminary decree can be taken into account - On facts,
since the addition of property was sought prior to passing of
D the decree in Written Statement, failure to pass decree in
respect of that property was a mistake of the court .... s. 97 is
not a bar to amend a decree to rectify the mistake of the court.

Words and Phrases - Decree - Meaning of.

E Predecessor of respondent filed a suit for _partition,
claiming % share in the propertx. Appellants-defendants
in their Written Statement contended that the plaintiff had
only 1/3rd share in the suit property. They also mentioned,
about. partition .of cycle business. In an application
F seeking amendment of Written Statement .also they
mentioned about the partition of business of cycle.
However, issues were not framed on this point. Trial Court
passed a decree d·eclaring 1/3td share in favour 9f
plaintiff. Appellants thereafter filed application under
G Order 20 Rule 18 rlw s.152 CPC with regard to share of·
the parties in the business of cycle. Application was
allowed. High Cou-rt set aside the order holding that in
terms of s.97 ·CPC.1 after the. preliminary ·decree attained
finality, additional properties cannot be added for partition
H . 904
-
S. SATNAM SINGH & ORS. v. SURENDER KAUR & 905
ANR.

in the preliminary decree. A

Allowing ..the. appeal, the Court

HELD: 1.1. A 'decree' as defined in Section 2(2) CPC
means the formal expression of an adjudication which,
so far as regards, the Court expressing it, conclusively B
determines the rights of the parties with regard to all or.
any of the matters in controversy in the suit. It may either
be preliminary or final. It may partly be preliminary and
partly be final. The court with a view to determine whether'
an order passed by it is a decree or not must take into , C
consideration the pleadings of the parties and the
proceedings leading upto the passing of an order. The .
·circumstances under which an order had been made
would also be relevant. [Para 14] [912-G-H; 913-A]
·D
1.2. For determining the question as to whether an
order passed by a court is a decree or not, it must satisfy
the tests viz.(i) ·there must be an adjudication; (ii) such
adjudication must have been given in a suit; (iii) it must
have determined the rights of the parties with regard to E
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
adjudi~atic:>n. [Para 15] (913-8-0]

1.3: Ordinarily, a suit for partial partition may not be F
entertained. When the parties have brought on records
by way of pleadings and/or other material that apart from
the property mentioned by the plaintiff in his plaint, there
are other properties which could be a subject matter of
a partition, the court would be entitled to pass a decree G
even in relation thereto. 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. [Paras 16 and 17] [913-E-H] H
906 SUPREME COURT REPORTS [2008] 16 S.C.R.

A 1.4. Section 97 CPC provides for an appeal against
preliminary decree but the said provision, would not .be 'j...
a bar to file an application for amendment of a decree.
[Para 20] (916-D]
1.5. The court may ·not have a suo motu power to
8
amend a decree but the ·same would not mean that the
court cannot rectify a mistake. If a property was subject
0

matter of pleadings and the court did not frame an issue
which it ought to have done, it can, at a later stage, when
pointed out, amend the decree. The power of
C amendment, in a case of this nature, would not only be
dependent upon the power of the court but also the
principle that a_ court shall always be ready and willing
to rectify .the mistake it has committed. [Paras 21 and 22]
[916-H; 917-A-B] . -
D
1.6. In the instant case, the issues were not correctly
framed. An additional written statement was permitted to
be filed. A replication thereto also was allowed. It was in
that situation, the question as to whether the -business
E transaction could be a subject matter of the suit for
partition or not was required to be determined on its own
merits. [Para 23] [917-C] ·
1.7. The Trial Court felt that it had committed a
mistake. In such a situation, the court, committed no
F infirmity in directing rectification of its mistake. [Para 24]
[917-D]
Phoolchand andAnr: v. Gopal Lal 1967 (3) SCR 153; Ct.
A. Ct. Nachiappa Chettiar and Ors. v. Ct. A. Ct. Subramaniam
G Chettiar {1960) 2 SCR 209 and Moo/, Chand & Ors .. v. Dy.
Director, Consolidation and Ors. AIR 1995 SC 2493, _Relied
on.
Syed /kramuddin v. Syed Mahamed Ali'AIR 1986 AP 267
and Venkata Reddy and Ors. v. Pethi Reddy AIR 1963 SC
H 992, Referred to
S. SATNAM SINGH & ORS. v. SURENDER KAUR & 907
ANR.
~ A
Case Law Reference:
AIR 1986 AP 267 Referred to Para 12

(1960) 2 SCR 209 Relied on Para 17

(1967) 3 SCR 153 Referred to Para 18
B
.., AIR 1995 SC 2493 Relied on Para 18
I,
AIR 1963 SC 992 Referred to Para 19

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7008 of 2008. c
From the Judgment and final Order dated 15.6.2007 of the
High Court of Judicature Andhra Pradesh at Hyderabad, in Civil
Revisipn Petition No. 2178 of 2006.
D I

P.S. Narsimha, Somiran Sharma and Aribam Guneshwar
·t Sharma for the Appellants.
i
G.V.R. Choudhary and K. Shivraj Choudhury for the
Respondents.
E
The Judgment of the Court was delivered by

S.B. SINHA, J.1. Leave granted.

2. Whether a property can be added in the list of
properties after a preliminary decree is passed in a partition F
t~
suit is the question involved herein.·

3. The parties hereto are successors of one late Surender
Singh and one late Harikishan Singh. They were brothers. First
respondent is the widow of late Harikishan Singh and the
G
second- respondent is his son. The property which was the
subject matter of the partition suit was a house premises
bearing Municipal No.2-4-1099 situated at Nimbali Adds,
Hyderabad admeasuring 671 sq. yards.

4. The suit was filed by late Harikishan Singh against the H
908 SUPREME COURT REPORTS (2008] 16 S.C.R~ -
~
A first petitioner and his son Rajinder Singh. In the written ..._

statement, the said fact was admitted. The question which.
arose for consideration of the court, however, was as regards
the share of the parties therein. Whereas according to the
petitione~, the plaintiff had only 1/3rd share in the suit property,
B according to the plaintiff he had 1/2nd share therein.
5. In the written statement, it was, inter alia, contended : --y

"There has never been any such attempt by the plaintiff for
partition of the property as alleged in the plaint. In fact, the
c plaintiff has failed to render true and proper account of the
business of M/s. Bombay Cycle Company though he was
specifically called upon to do so by the defendant - 2,
individually as well through his counsel. The plaintiff has
also never co-operated in managing the matters
D immediately after the death of Late Sunder Singh, the
father· of the plaintiff and defendant - 1. Having knocked
away some of the securities and other amounts which t
were in the hands of the plaintiff after death of late Sunder r
Singh singularly the plaintiff has chosen to file the present
E suit for partition claiming 50% share in the residential
house, which is mentioned as suit schedule property."

6. An application for amendment of the said written
statement was,.filed, inter alia, stating :
F "It is true that Sri Sunder Singh died on 26.4.1980 intestate
leaving behind his widow, the plaintiff and the defendant -
1 herein. It is also true that wido'tlf of late Sri Sunder Singh,
i.e., Smt. Karam Kaur also died on 14.9.1992. Howev~r.
the allegation that she died intestate is incorrect and false.
G The plaintiff is very well aware that Smt. Karam Kaur
executed a registered will on 1.9.1981 before the Sub- /f....
registrar, Chikkadpally bequeathing her 1/3rd share in the
suit schedule property as well as her 50% rights as a
partner in the business of Mis. Bombay Cycle Company
H to the defendant No.2, herein. In the circumstances the
S. SATNAM SINGH & ORS. v. SURENDER KAUR & 909
ANR. [S.S. SINHA, J.]
..('
contrary allegations made in the plaint in this respect are A
denied as false and fabricated. It would, thus, be apparent
that by any stretch of imagination the plaintiff cannot deny
50% rights in respect of the suit schedule property as after
the death of Sunder Singh, widow of Sri Sunder Singh,
Karam Kaur, plaintiff I and the defendant 1 herein had B
become entitled to 1/3rd share each. Smt. Karam Kaur
'r
\ having executed a registered will on 1.9.81, her 1/3rd share
naturally goes to the defendant 2, herein. In the
circumstances the plaintiff would not be entitled to anything

----..
more than 33.33% of the suit Schedule property if at all." c
It was furthermore alleged :

"There has never been any such attempt by the plaintiff for
partition of the property as alleged in the plaint. In fact, the
plaintiff has failed to render true and proper account of the D
4 business of M/s. Bombay Cycle Company though he was
t spedfically called upon to do so by the defendant - 2,
~
individually as well as through his counsel. The plaintiff has
also never co-operated in managing the matters
immediately after the death of Late Sunder Singh, the E
father of the plaintiff and defendant - 1. Having knocked
away some of the securities and other amounts which
were in the hands of the plaintiff after death of late Sunder
. Singh singularly the plaintiff has chosen to file the present
suit for partition claiming 50% share in the residential F
~' house, which is mentioned as suit schedule property. It
would thus be apparent that there is absolutely no merits
in the suit and the plaintiff would not be entitled for the
share as claimed. The suit, therefore being absolutely
devoid of merits deserves to be dismissed with costs."
G

-
.~ A replication to the said written statement was also filed.

Iii 7. The learned Trial Judge framed issues which read as
under:
H
910 SUPREME COURT REPORTS [2008) 16 S.C.R.

A "i. · Whether plaintiff is entitled for partition? If so, to ~
what share? ~

ii. To what relief?

On 21.1.02, basing on the pleadings of defendant
B No.3, the following additional issues were settled:-

iii. Whether defendant No.3 is the legal heir of -1
f
defendant No.2?

iv. Whether the Will deed claimed by defendant No.3
c is true, valid and binding on the plaintiff?"

8. The suit was decreed declaring 1/3rd share in favour
of the plaintiff as also the first defendant, stating:

D II i. The plaintiff is entitled to partition and separate
possession of 1/3rd share only in the suit schedule
property. -r-
to
ii. The first defendant is entitled to 1/3rd share in the
suit schedule property.
E
iii. Defendant No.3 being the legal heir of defendant
No.2, who is not heard of since more than 7 years
and thereby presumed to be dead in the eye of law.
Defendant No.3 is entitled to his (D2) 1/3rd share
F in the suit schedule property."
-f
9. An interlocutory application was filed by the appellant
th~reafter purported to be in terms of Order XX Rule 18 of the
Code of Civil Procedure read with Section 152 of the Code of
Civil Procedure with regard to the ~hare of the partie~ in the
G
said Bombay Cycle Company. The respondents o jected
thereto. By reason of an order dated 14th March, 2006, the said /\_
application was allowed, directing :

"Admittedly the petitioners have raised a plea in respect
H of Bombay Cycle Company in their written statement but

,,,__
S. SATNAM SINGH & ORS. v. SURENDER KAUR & 911
ANR. [S.S. SINHA, J.]
-t. there was no specific issue framed in the regard. The A
learned counsel appearing for the petitioners submit that
in order to shorten the litigation instead of driving the
parti_es to a separate action, the present dispute can be
decided in the present dispute itself. The petitioners in
support of their contention relied on the decision of our B
Hon'ble High Court in Syed lkramuddin v. Syed Mahamed
~-
..,
Ali reported in AIR 1986 AP 267. Further there is a dispute
with regard to the Bombay Cycle Co. business. Whether
it is a joint family business and whether the petitioners are
having any share in the property cannot be decided without c
making any enquiry in that direction.

Therefore, I feel that the parties should be directed
to adduce oral or documentary evidence in respect of their
respective contentions so as to enable this Court to decide
the point of controversy. It is also not out of place of mention D
here that the Hon'ble High Court also directed to dispose
f of the matter at the earliest possible time.
+
Accordingly the parties are directed to lead oral and
documentary evidence in support of their contentions. The E
respondent No.4 herein is not a party to the suit. No relief
is passed against the respondent No.4 herein is not a
party to the suit. No relief is passed against the respondent
No.4 in this petition. Call on 16.3.2006."

10. A civil revi~ion application filed thereagainst by the F
t-· respondents has been allowed by reason of the impugned
judgment.
. The High Court referred to the decision of this Court
\
m Phoolchand v. Gopal Lal [AIR 1967 SC 1470] to conclude:

"The Supreme Court was dealing with a case where the G
shares had to be reallocated on account of death of party
A,_
and therefore the Court said such facts can be taken into
consideration and appropriate orders could be passed
which could be a fresh preliminary decree. But here we
have a case where it is contended by the defendants that H
912 SUPREME COURT. REPORTS [2008] 16 S.C.R.

'~
;·
A they had mentioned in their.written statement the property
to
which they now sought include in the preliminary decree. \-
Whole trial went on decree was passed in 2003, and this
. part!cular property was not mentioned in the decme as
joint family property and after three years an application
B . came fo be filed that it should be added in the· decree
which, ·in our view, is not permissibl'e. Therefore, we hold --(-
.that the judgment of this Court in Syed lkramuddiri v: Syed f

Mahamed Ali does not lay down a good law and the
question is answered that additional properties cann_ot be
c added for partition in the preliminary decree after the
preliminary decree attained finality in terms of Se_ction 97
· of the Code.. "
..
. '
11-. Mr. P.S. Narasimha, learned counsel appearing on
behalf of the appellant, would submit that ,as in this case the
D only dispute between the parties was with regard· to the s,hare
in the suit property and, thus, it was obligatory on the part of ~
the court to pronounce its decision on all the issues. ~

. 12. It was urged. that a very well .considered decision of
E the.Andhra Pradesh High Court in Syed lkramuddin. it.. Syed
Mahamed Ali [AIR 1986 AP 267] has wrongly been overr~led
by reason of the impugned judgment.

13. Mr. G.V.R. Choudhary, learned counsel appearing on
behalf of the respondent, on the other hand, would support the
F judgment contending that the courts even do not have any suo ·+
' .
motu power to amend the decree as a preliminary decree once
passed is final.

14. A.'decree' is denned in Section 2(2) of the Code of
G · Cfvil Procedure to. mean the. formal expr~ssion of an
adjudication which, so far as regards, the Court expressing it,
conclusiveiy determines the rights of the parties with regard to
all or any of the matters in controversy in the suit. It may either
be preliminary or final. It may partly be preliminary ~nd partly
H be final. The court with a view to determine whether an order '
J=
I
S. SATNAM SINGH & ORS. v. SURENDER KAUR & 913
ANR. [S.S. SINHA, J.]

passed by it is a decree or not must take into consideration A
the pleadings of the parties and the proceedings leading upto
the passing of an order. The circumstances under which an
order had been made would also be relevant.

15. For determining the question as to whether an order
B
passed by a court is a decree or not, it must satisfy the
\.- following tests :
~

"(i) There must be an adjudication;

(ii) Sucti adjudication must have been given in a suit;. c
(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; D
and
1
~ (v) There must be a formal expression of such
adjudication."

16. Before adverting to the nval contentions of the parties, E
it must be kept in mind the principle that ordinarily a party should
not be prejudiced by an act of court. It must also furthermore
be borne in mind that in a partition suit where both the parties
want partition, a defendant may also be held to b~ a plaintiff.
Ordinarily, a suit for partial partition may not be entertained. F
When the parties have brought on records by way of pleadings
and/or other material that apart from the property mentioned by
the plaintiff in his plaint, there are other properties which could
b~ a subject matter of a partition, the court would be entitled to
pass a decree even in relation thereto. G
17. In certain situations, for the purpose of complete
adjudication of the disputes between the parties an appellate
Court may also take into cq~sideration subsequent events after
passing of the preliminary decree. H
914 SUPREME COURT REPORTS [2008] 16 S.C.R.

A In Ct. A. Ct. Nachiappa Chettiar & Ors. V. Ct. A. Ct. '\.
Subramaniam Chettiar[(1960) 2 SCR 209], it was held :

"It would thus be seen that the r~spondent's share in the
family properties was not in dispute nor was his share in
the prbperties in Burma seriously challenged. The only plea
B
raised in respect of the latter claim was that the court had
no jurisdiction to deal with it. This state of the pleadings in --+
{
a sense truly reflected the nature of the dispute between
the parties. It is common ground that the family is a trading
family and there could be no doubt that the assets of the
c family were partible between the members of the family. It
was on these pleadings that the trial judge framed fifteen
issues and set down the case for hearing."

18. While dealing with the application under Section 21 of
D the Arbitration Act, 1940 where one of the questions was as
to whether an immoveable property situated in Burma could be
a subject matter of reference, in Phoo/chand & Anr. v. Gopal )--
~
Lal [(1967) 3 SCR 153], it was held :

"7. We are of opinion that there is nothing in the Code of
E
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. We
F have already said that it is not disputed that in partition ~-
suits the court can do so even after the preliminary decree
is passed. It would in our opinion be convenient to the court
and advantageous to the parties, specially in partition suits,
to have disputed rights finally settled and specification of
G shares in the preliminary decree varied before a final
decree is prepared. If this is done, there is a clear .
determination of the rights of parties to the suit on the
question in dispute and we see no difficulty in holding that
in such cases there is a decree deciding these disputed
H
S. SATNAM SINGH & ORS. v. SURENDER l"-AUR & 915
ANR. [S.S. SINHA, J.]

rights; if so, there is no reason why a second preliminary A
r decree correcting the shares in a partition suit cannot be
passed by the court. So far therefore as partition suits are
concerned we have no doubt that if an event transpires
after the preliminary decree which necessitates a change
in shares, the court can and should do so; and if there is a
a dispute in that behalf, the order of the court deciding that
dispute and making variation in shares specified in the
-\.-
., preliminary decree already passed is a decree in itself
which would be liable to appeal. We should however like
to point out that what we are saying must be confined to c
partition suits, for we are not concerned in the present
appeal with other kinds of suits in which also preliminary
and final decrees are passed. There is no prohibition in
the Code of Civil Procedure against passing a second
preliminary decree in such circumstances and we do not
D
see why we should rule out a second preliminary decree
in such circumstances only on the ground thatthe Code
of Civil Procedure does not contemplate such a
1
~ possibility."

The said principle was reiterated in Moo/ Chand & Ors. E
v. Dy. Director, Consolidation & Ors. [AIR 1995 SC 2493),
stating :

"The definition of 'decree' contained in Section 2(2) read
with the provisions contained in Order 20, Rule 18(2) as F
also Order 26, Rule 14 of the Code indicate that a
preliminary decree has first to be passed in a partition suit
and thereafter a final decree is passed for actual
separation of shares in accordance with the proceedings
held under Order 26. There are, thus, two stages in a suit
G
for partition. The first stage is reached when the preliminary
decree is passed under which the rights of the parties in
,., the property in question are determined and declared. The
second stage is the stage when a final decree is passed
which concludes the proceedings before the Court and the
H
S. SATNAM SINGH & ORS. v. SURENDER KAUR & 917
ANR. [S.B. SINHA, J.]

rectify a mistake. If a property was subject matter of pleadings A
_.. and the court did not frame· an issue which it ought to have
done, it can, at a later stage, when pointed out, amend the
decree. · · · ·

22. The power of amendment, in a case of this natur~. as 8
noticed hereinbefore, would not only be dependent upon the
power of t~e court but also the principle that a court shall always
be ready and willing to rectify the mistake it has committed.,
t\
23. The issues were not correctly framed. An addition~!
written statement was permitted to be filed. A replication c
thereto also was allowed. It was in that situation, the questioh
as to whether the business transaction of Bombay Cycl~
Company could be a subject matter of the suit for partition or
not was required to be determined on its own merits.
D
24. The Trial Court felt that it had committed a mistake. In
such a situation, the court, in our opinion, committed no infirmity
in directing' rectification of its mistake.
i
25. For the reasons aforementioned, the impugned
judgment cannot be sustained. It is set aside accordingly. The E
appeal is allowed. No costs.

K.K.T. Appeal allowed.