Section 54 of CPC: Partition of Estate or Separation of Share

By Mohammed Asif

Published on: April 21, 2022 at 11:09 IST

Introduction

Partition of an estate or separation of shares is dealt with under Section 54 of the Civil Procedure Code. A Partition is done among the co-shareholders of the property for the separation of their shares to possess their individual share. Separation of Shares means ‘Partial partition’ where one or several co-owners get separated and other Co-owners hold their property jointly without division of shares.

Section 54^[1] of Civil Procedure Code

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 gazette subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.

How does the execution take place in case of cross-decrees?

The Decrees are held by the Plaintiff and the Defendant in a different suit by each other so that the Judgment-debtor in a suit becomes the Decree-holder in the other suit. In Execution proceedings, such cross-decrees are set off against each other.

Meaning of partition

The only duty of the Collector also called ‘Deputy Commissioner’ under Section 54, Order XX, Rule 18^[2], Code of Civil Procedure, is to affect partition by metes and bound in accordance with the law.

Under Section 54 or Order XX, Rule 18 the word ‘partition’ means that the partition is not limited to only the division of the lands regarded into the requisite parts, but also has the delivery of shares to the appropriate allottees. Simply the term ‘partition’ means actual division or partition by metes and bounds and delivering over possession of the shares to the parties concerned.

Section 54 or Order XX, Rule 18, CPC does not state which nature of the property to be divided. So  Section 54 of CPC does not stop the Deputy Commissioner, to decide the matter in question as to whether the agricultural lands are subjected to partition or not. It is the duty of the Civil Court but not of the Deputy Commissioner.

Laws governing partition

• Partition Act 1893^[3]
• Code of Civil Procedure 1908
• The provisions related to the partition of property in CPC are Section 54, Order XX, Rule 18, and Order XXVI, Rule 13 and 14^[4].

Separation of Shares

Separation of Shares means where only one few several co-owners get separated and others will continue to hold the remaining property jointly where it is not divided by metes or bounds. Partition among the co-shareholders of the property is done for separation of shares for their individual possession of each share. The separation of Shares is also called a ‘Partial partition’. When the separation of shares takes place among all co-shareholders it is called a ‘Full partition’

For example- There are five brothers owing a property when they divide among themselves by metes and bounds it is a partition. But when one shareholder wants to get his part of the share. But the other four do not want their shares but want to continue jointly there is only a separation of shares.

Essential conditions

To apply the rule to cross-decrees it is necessary that the following conditions need to be fulfilled:

• The cross-decree need to be for the payment of two sums of money, it should be obtained in a Separate suit.
• The decrees must be capable of execution at the same time.
• The decree-holder in one suit should be the judgment-debtor in another suit.
• The decree must lie before the executing court for execution and application should be made for both of them.

Illustration

• A and B, Co-Plaintiffs, obtain a decree for Rs. 1,000 against C, and C obtains a decree for Rs. 1,000 against B. C cannot treat his decree as a Cross-decree under this provision.
• A obtains a decree against B for Rs. 1,000. C, who is a trustee for B, obtains a decree on behalf of B against A for Rs. 1,000. B cannot treat C’s decree as a Cross-decree under this provision.

Kinds of decrees

The courts will issue 3 kinds of decrees.

• Preliminary decree
• Composite decree
• Final decree

Purpose of the suit

The partition or separation of a share holds a twofold motive

• • Under the preliminary decree there should be a declaration of plaintiff shares in the suit property.
  • The shares of the party will be divided by metes and bounds which will take place under the final decree.

 Procedure in regard to the partition suit

If a suit for a partition is filed in the court, the court will issue the decree after a thorough scrutinizing. It may be a preliminary decree, composite decree, or final decree. In a few cases, the property may be put to sale and the proceeds from the sale will be shared among the shareholders which can be termed a final decree.

The Court may direct the parties to deposit the amount which is required for non-judicial stamp paper which is in proportion to the value of their share.

The preparation of a judicial stamp paper of a requisite value is required in the decree of a partition suit.

The Court may retain the decree and the copies of the same will also be issued to the parties.

Such copy of the decree will be sent to the filing in the book

Book number 1: in his office or in the place where the property is situated.

The final decree in the partition suit will be treated as a registered document.

It will form part of the Registration records.

 Issue of preliminary decree

Without further inquiry, the Court cannot make a division of property by metes and bounds. In such a case, the Court will pass a preliminary decree in the partition suit.

The preliminary decree identifies the property that needs to be partitioned and defines the rise and shares of the parties.

 Referring the separation of shares to the collector or commissioner

When the Court passes the preliminary decree it is the duty of the Court to refer the matter either to the collector or to the commissioner for the division of the property. Then the parties don’t agree on the matter of division.

In accordance with Section 54 of the Code of Civil Procedure partition of the estate will be processed in regard to the estate assessed to the payment of the revenue to the government in the case of agricultural land the Court is required to pass a decree by declaring all the parties rights in the property suit and the direction to the same will be given to the collector.

The matter will not come back to the Court and the Court will not interfere in the partition if the action of the collector in passing the decree is appropriate.

The collector is bound by the declaration of rights of the parties while making the partition suit in the preliminary decree.

The Civil Court will have the power to dispose of if any issue arises out of the parties that the collector is not competent to decide. If the collector disregards the decree passed the Court is entitled to refer the case back to the collector for re-partition.

There is a two-fold motive under this provision:

• Firstly, to deal with the matters than a Civil Court the revenue Authorities are better versed and better equipped.
• Secondly, the revenue paved for the estate will be safeguarded better by the collector than by a Civil Court which is in the interest of the government.

This will be done in the normal case scenario as a duty until the continuation of the preliminary decree.

Cases:

In R. Ramamurthi Iyer v. Raja V. Rajeswara Rao^[5] the Court observed the law relating to partition. And held as to how the nature and happening of a Partition Suit and its consequences result once the sections of the Partition Act are invoked or sought to be applied.

In RachaKonda Venkat Rao v. R Satya Bai^[6], the Supreme Court of India explained various procedures in a suit for Partition. The suit can be disposed of by the way of Preliminary or Final decree all in once basing on the agreement in between the parties. In this suit the steps after preliminary decree is to be taken by the Collector. if the subject matter of the partition suit is land which is an asset to the state.

Final decree

The decree will be final when the court will disclose the suit without any further adjudication. In the final decree, the Court will declare the separation of shares by metes and bounds or any other measures as per the party’s wishes.

Conclusion

The Code of Civil Procedure does not state any filing of an application for a final decree. Execution of partition decree can also be done by a Collector or Commissioner to affect the actual partition or separation or in accordance by the declaration made by the court with regard to their shares and portions of the partition.

Therefore as per the Limitation Act 1963^[7], the parties cannot seek a new fresh prayer of relief and such application is not governed by the Limitation Act.

Reference

•  Lawyersclubindia
• shareyouressays
• legalserviceindia

1. The Code of Civil Procedure, Section 54 ↑
2. The Code of Civil Procedure, Order XX, Rule 18 ↑
3. Partition Act 1893 ↑
4. The Code of Civil Procedure, Order XXVI, Rule 13 and 14 ↑
5. R. Ramamurthi Iyer vs Raja V. Rajeswara Rao ↑
6. RachaKonda Venkat Rao v. R Satya Bai (September 11^th 2003) ↑
7. The Limiatation Act 1963 (Act 36 of 1963) ↑