SREE RAJAH MANTRIPRAGADA VENKATARAGHAVA RAO BAHADUR ZAMINDAR GARU Vs. SREE RAJAH MANTRIPRAGADA VENKATA HANUMANTHA RAO BAHADUR ZAMINDAR GARU (DECEASED)

JUDGEMENT

(1.) The question which the Full Bench is called upon to answer is whether the Court which has passed a decree for partition to which Section 54 of the Civil P. C. applies and has sent it to the Collector for the purpose of effecting the partition has power to hear objections to the order of partition actually passed. The section reads as follows: Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Crown, 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 gazetted 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.

(2.) In Chinna Seetayya V/s. Krishnavenamma (1896) I.L.R. 19 Mad. 435, a Division Bench of this Court held that the Court had power to hear and decide, objections to the division of the estate made by the Collector under Section 265 of the Code of 1882, to which Section 54 of the present Code corresponds, and in arriving at this decision the learned Judges relied on the decision of the Bombay High Court in Mahadaji Karandikar V/s. Hari D. Chikne (1883) I.L.R. 7 Bom. 332, which was concerned with Section 320 of the Code of 1882, to which Section 68 of the present Code corresponds. There are several decisions of the Bombay High Court relating directly either to Section 265 of the old Code or Section 54 of the new Code. We shall refer to them in detail presently, but in passing we may say that in some of the cases the Bombay High Court has expressed the view that the Court has no power to interfere and in others that it has a limited power. Admittedly there is no provision in the Civil P. C. giving the right to a party aggrieved by the partition effected by the Collector under Section 54 to appeal to the Civil Court which passed the decree or to apply for revision of the Collector's order. When we read Section 54 in the light of Order 20, Rule 18 and Order 26, rules 13 and 14, it is in our judgment quite clear that the legislature did not intend the Court to have power to interfere with a partition made by the Gollector under Section 54.

(3.) Order 20, Rule 18 was inserted in the Code for the first time in 1908, and it states what the decree shall contain when it relates to an estate assessed to the payment of revenue to the Government and what the Court may do when the decree relates to other immovable property. Sub-rule (1) reproduces the provisions of Section 54. Sub-rule (2) says that in so far as the decree relates to other immoveable property the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required. It should be borne in mind that where the decree relates to an estate assessed to the payment of revenue to the Government there is no preliminary decree and the Court is not required to give directions. In the case of other immoveable property, the Court may, however, pass a preliminary decree and in it give directions with regard to the partition.