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Venu v. Ponnusamy Reddiar (Dead) Thr. LRs & Anr.

Civil Appeal · Neutral citation not assigned (Civil Appeal No. 4187 of 2008)Decided 27 Apr 2017
Civil Appeal No. 4187 of 2008
Justice Arun Mishra · Justice Amitava Roy

Background

A preliminary decree for partition of property had been passed in 1959. Thirty years later, in 1989, an application was filed seeking appointment of a court commissioner to carry out the partition and draw up the final decree. The appellant argued this application was time-barred under Article 137 of the Limitation Act, 1963, since it was filed decades after the preliminary decree.

Decision Breakdown

The Supreme Court held that a suit for partition remains pending until a final decree is passed: the preliminary decree only crystallizes the parties' rights but does not end the litigation. Since no limitation period is prescribed for seeking a final decree or appointment of a commissioner in a still-pending suit, the application could not be held time-barred, regardless of how many years had elapsed since the preliminary decree. The Court relied on a consistent line of High Court authority (Calcutta, Kerala, Punjab & Haryana, Madras, Peshawar, Orissa) taking the same view, and found no evidence that the parties had already worked out the partition by mutual agreement/compromise. The appeal was accordingly dismissed with no order as to costs.

Lesson Learnt

In a partition suit, the case stays legally "alive" between the preliminary decree and the final decree: there is no limitation clock running against a party seeking to have the final decree drawn up and the property actually divided, however much time has passed.

Official source (sci.gov.in)View Judgment (PDF)

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