While allowing an appeal for a partition suit, the Supreme Court said that there is a trend of delay in initiating final decree proceedings.
The plaintiffs, in this case, had filed for a partition, claiming half a share in the property. The property belonged to Kattukandi Edathil Kanaran Vaidyar. He had four sons, Damodaran, Achuthan, Sekharan and Narayanan. Achuthan had one son Karunakaran. Sekharan and Narayan did not have any sons. Damodar had married Chiruthakutty and they both had a son out of wedlock. The son of Damodar is the first plaintiff in this case. It was contended by the defendants that Damodar did not marry and therefore, the plaintiffs should not get any share in the property.
The Trial Court had framed issues and upon examination of the evidence, it had concluded that Damodar had married Chiruthakutty and the first plaintiff is their son. The trial court had accordingly passed a preliminary decree in the favour of the plaintiffs.
The defendants filed an appeal before the High Court where it was held that the first plaintiff is the son of Damodaram, however, he is an illegitimate child. The appeal had been filed before the Supreme Court challenging this order. A lot of evidence was examined by the Hon’ble Court and on the basis of which the court said:
“The documents produced by the plaintiffs were in existence long before the controversy arose between the parties.
These documents, coupled with the evidence of PW2, would show the long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife……..27. We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long cohabitation.”
The Supreme Court relied on a number of judgments and observed that when a man and woman have been living for a long time, it is usually presumed that they are married. Though the presumption is rebuttable, the burden lies on those who want to rebut this presumption. In the present case, the defendants have failed to rebut the presumption that no marriage took place between Damodaran and Chiruthakutty. On the other the documents produced by the plaintiffs proved it. In light of the above, Supreme Court allowed the appeal and restored the order of the Trial Court.
The Hon’ble court then went on to observe that, the litigants take a lot of time in moving an application for preparation of a final decree after a preliminary decree has been passed. The court relied on the observations it had made in the case of Shub Karan Bubna and said that this practice should be discouraged as it delays the realization of the fruits of the decree. It was observed:
” We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceeding. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state
that the suit comes to an end only when a final decree is drawn.”
It further directed the Trial Court to suo-moto start the proceedings for possession of the property without any separate proceedings and a copy of this judgment has to be sent to all registrar generals of the High Court, who then have to circulate it further to the trial courts.
case: KATTUKANDI EDATHIL KRISHNAN & ANR. vs. KATTUKANDI EDATHIL VALSAN & ORS.
https://main.sci.gov.in/supremecourt/2009/15653/15653_2009_2_1501_36142_Judgement_13-Jun-2022.pdf