A. Krishna Shenoy v. Ganga Devi G. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 31ST DAY OF JULY 2018 / 9TH SRAVANA, 1940** ## **RFA.No. 13 of 2017** ## **AGAINST THE ORDER IN O.S. NO.205/1994 OF SUB COURT, KOCHI.** ## **- APPELLANT(S)/1ST RESPONDENT/DEFENDANT NO.1:** **A.KRISHNA SHENOY, AGED 64 YEARS, S/O.LATE ACHUTHA SHENOY, 8/1176, T D EAST GATE, KOCHI - 682 002.** **BY ADVS.SRI.K.SASIKUMAR SRI.SANTHOSH G. PRABHU SMT.K.S.SANGEETHA SMT.A.ASWATHY** ## **RESPONDENT(S)/PETITIONERS & RESPONDENTS 2 TO 16/3RD PARTIES & PLAINTIFFS:** ## **1. GANGA DEVI G.,** **D/O.LATE ACHUTHA SHENOY, NOW RESIDING AT SARASWATHY NIVAS, A N PURAM, EAST GATE, ALLAPUZHA-688001.** ## **2. GEETHA BAI,** **D/O.LATE ACHUTHA SHENOY, AGED 60 YEARS, RESIDING AT KALAPARAMBATH HOUSE, ALANGAD P.O. PIN- 683 511.** ## **3. SAROJINI BAI,** **AGED 60 YEARS, D/O.RAGHAVA SHENOY, T.D EAST NADA, MATTANCHERRY, KOCHI - 682 002.** ## **4. VIJAYA,** **AGED 59 YEARS, W/O.LATE RANGANATHA SHENOY, T.D EAST NADA, MATTANCHERRY, KOCHI - 682 002.** ## **5. SREEKUMAR R SHENOY,** **AGED 40 YRS, S/O.LATE RANGANATHA SHENOY, T.D EAST NADA, MATTANCHERRY, KOCHI - 682 002.** ## **6. MAHESH R SHENOY,** **AGED 40 YRS, S/O.LATE RANGANATHA SHENOY, T.D EAST NADA, MATTANCHERRY, KOCHI - 682 002.** **RFA.No. 13 of 2017** **7. JAYANTHI R SHENOY, AGED 32 YRS, D/O.LATE RANGANATHA SHENOY, T.D EAST NADA, MATTANCHERRY, KOCHI - 682 002.** **8. RAKESH B SHENOY, AGED 24 YRS, S/O.LATE BALAKRISHNA SHENOY, T.D EAST NADA, MATTANCHERRY, KOCHI - 682 002.** **9. RAKHI B SHENOY, AGED 22 YRS, D/O.LATE BALAKRISHNA SHENOY, T.D EAST NADA, MATTANCHERRY, KOCHI - 682 002.** **10. R.RAMESH MALLYA, 8/674A, S R SIVARAMAN ROAD, KOOVAPADAM, KOCHI - 682 002.** **11. R.USHA, 8/1137B, SOUTH CHERLAI, MATTANCHERRY, KOCHI - 682 002.** **12. R.SHANTHAKUMARI, 8/673, S R SIVARAMAN ROAD, KOOVAPADAM, KOCHI - 682 002.** **13. R.SAVITHA, 8/1375, SOUTH PUTHUPARAMBU, TOWN HALL ROAD, KOCHI - 682 002.** **14. R.SATHEESH MALLYA, 10/561A, SMRITHINIVAS, GOPALAKRISHNA TEMPLE LANE, KOCHI - 682 001.** **15. R.VIJAYALAKSHMI, 3/207, ELANJIKAL HOUSE, CHERIYAKADAVU, KANNAMALI P.O., KOCHI.** **16. RAMACHANDRA MALLYA, H/O.VINAYA, T.D EAST NADA, MATTANCHERRY, KOCHI - 682 002.** **17. R.CHITHRAKUMARI, 5/798, KANNANPARAMBIL HOUSE, POTTAN STREET, NORTH PARUR-683301. R1& R2 BY ADV. SRI.S.R.DAYANANDA PRABHU(CAVEATOR) R3-R17 BY ADVS.SRI.SAJAN MANNALI SMT.SANTHI K.PAI** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RVS 03/08/2018** ## **P.D. RAJAN, J.** **-----------------------R.F.A. No.13 of 2017** **---------------------------------Dated this the 31[st] day of July, 2018** ## **J U D G M E N T** This appeal is preferred against the order in I.A. No.390 of 2015 in O.S. No.205 of 1994 of the Sub Judge, Kochi by the first respondent in the interlocutory application, who is the 1[st] defendant in the Suit. The above I.A. No.390 of 2015 was filed by the 16[th] and 17[th] respondents in the final decree application. The decree holders in the above Suit filed I.A. No.1601 of 2013 in O.S. No.205 of 1994 for passing final decree, wherein the 1[st] and 2[nd] respondents in this appeal were arrayed as 16[th] and 17[th] respondents who preferred I.A. No.390 of 2015 to pass Supplementary Preliminary Decree and the learned Sub Judge allowed the application in part and passed a Supplementary Preliminary decree. Hence this appeal. 2. The petitioner's case in I.A. No.390 of 2015 is that, the plaint schedule properties 1 and 2 belonged to their grandfather one Renga Shenoy. Deceased Raghava R.F.A. No.13 of 2017 2 Shenoy and Achutha shenoy were the legal heirs of Ranga Shenoy. The petitioners along with the first respondent are the legal heirs of deceased Achutha Shenoy. The plaint schedule property No.3 is the self acquired property of their parents, namely Achutha Shenoy and Kamala Bai. Achutha Shenoy died on 25.12.1993 and Kamala Bai died on 15.06.1997. After the death of Achutha Shenoy, his family property devolved upon his legal heirs and after the death of Kamala Bai, item No.3 which is the self acquired property of their parents also devolved upon their legal heirs including the petitioners. In O.S. No.205/1994, a preliminary decree was passed for partitioning the plaint Schedule property Nos.1 and 2 into two equal shares and allotted one such share to the plaintiffs. The plaint item No.3 is not partible among the plaintiffs and defendants. The petitioners did not get an opportunity to contest the suit since they were not parties in that Suit, but they were parties in the final decree proceedings. Since the petitioners are the co-owners of plaint Item Nos.1 to 3 properties, they are entitled to get R.F.A. No.13 of 2017 3 the property partitioned. Hence it is prayed to pass a supplementary preliminary decree directing partition of the plaint schedule item No.1 and 2 by metes and bounds. 3. In the lower court, the first respondent filed a counter statement in writing and contended that the petitioners 1 and 2 are the legal heirs of Achutha Shenoy and Kamala Bai along with the first defendant and the petitioners have no right to inherit the assets of their parents. Item No.3 is self acquired property of Achutha Shenoy and Kamala Bai, and they expired on 25.12.1993 and 15.06.1997 respectively. As per the will deeds dated 3/1/1993 executed by Achutha Shenoy and Kamala Bai, the first defendant obtained ownership and possession over the plaint schedule properties after the death of their parents. It is true that in the above case a preliminary decree was passed for partitioning the plaint item No.1 and 2 properties into two equal shares and allotting one such share to the plaintiffs and plaint item No.3 was found to be not partible. The petitioners were not parties in the above suit and they are having no right R.F.A. No.13 of 2017 4 over the plaint schedule properties. They are not the coowners of the plaint schedule properties and are not entitled to get the above properties partitioned. Hence, passing a supplementary preliminary decree for partitioning the plaint schedule item No.1 and 2 is unsustainable. The petitioners have filed O.S. No.47/14 for partition of the very same plaint schedule properties and the same is now pending consideration. So this petition is an abuse of process of court and is filed with an intention to harass the first respondent. The petitioners filed an I.A. No.1187/2014 for impleading themselves as additional defendants 3 and 4 which was dismissed by the Court on 8.1.2015. Moreover, A.S.815/1996 filed by the first respondent was dismissed by this Court and the decree has become final and it is prayed to dismiss the above petition. 4. In the lower court, both parties adduced oral and documentary evidence. Petitioner's evidence consist of oral evidence of PW1 and PW2 and documentary evidence of Exts.A1 to A5. Respondents evidence consist R.F.A. No.13 of 2017 5 of oral evidence of RW1 to RW3 and documentary evidence of Exts.B1 and B2. 5. Learned counsel for the appellant contended that the preliminary decree was passed on 24.11.1995 by allotting one share to the plaintiffs (respondent 3 to 17 herein), but there was no declaration of rights and allotment of share for the defendants in the original suit. Hence the said application for passing supplementary preliminary decree for allotting the shares of defendants in the suit to their legal representatives is not maintainable. The two Wills were executed and signed by Achutha Shenoy and his wife Kamala Bhai in the presence of RW1 and RW2. Their evidence show that both the executants were physically and mentally healthy at the time of the execution of the WILLs and no reason to doubt the execution of the Will. 6. The learned counsel appearing for the respondents contended that there is no illegality in passing a supplementary Preliminary Decree in this case and the genuineness of the wills were properly answered R.F.A. No.13 of 2017 6 by the lower court. The execution of the wills were not proved in the lower court and the evidence itself do not satisfy the provision of law. Hence he prays to dismiss the appeal. 7. Before adverting to the argument advanced by both counsel, I have considered the supplementary preliminary decree passed by the Court below. The lower court passed a supplementary preliminary decree according to the following terms. 1. The petitioners are entitled for partition of the ½ share of plaint item No.1 and 2 properties belonged to Achutha Shenoy into three equal shares and they are entitled to get one such share each therein. 2. They are also entitled for separate possession of their respective shares. They are also entitled for applying final decree for partition of the said property. 3. In the facts and circumstances of the case, there is no order to costs. 8. So far as partition suits are concerned, there is no doubt that even after the preliminary decree which R.F.A. No.13 of 2017 7 necessitates a change in shares, the court can pass a Supplementary Preliminary Decree. The judgment and decree dated 24.11.1995 was passed by the Sub Court, Kochi holding that the plaintiffs are entitled for ½ share in item 1 & 2 properties. Item No.3 was found to be not partible as the same is the self acquired property of late Achutha Shenoy and late Kamala Bai. In the final decree application, I.A No.1601/2013 filed by 3[rd] respondent, respondents 1 and 2 herein, who were not parties in the said preliminary decree, were made parties. Thereafter I.A. No.1187 of 2014 filed by the respondents 1 and 2 to get themselves impleaded in the preliminary decree stage was dismissed on 8/1/2015. In the meantime the respondents 1 and 2 herein filed O.S. No.47/2014 before the same court for partition and other reliefs of the very same properties against same parties. Thereafter the respondents 1 & 2 herein filed I.A. No.390/2015 to pass supplementary preliminary decree. Now they submitted that after supplementary preliminary decree they have withdrawn the claim of partition in O.S. No.47/2014 and it R.F.A. No.13 of 2017 8 is posted for trial of other issues in the Suit. 9. It is not disputed by the parties in this case that in partition suits, the court can even after passing the preliminary decree, pass a supplementary preliminary decree. Where in a suit for partition, a preliminary decree was passed declaring shares of the parties, the said preliminary decree is valid. Accordingly, in O.S. No.205/1994, the right of both parties were declared and a preliminary decree was passed for partitioning the plaint schedule property Nos.1 and 2 into two equal shares and allotted one share to the plaintiff in that suit. Appellants case is that there was no declaration of right of the defendants and allotment of shares for the defendants in the Original Suit, hence allotting share in the supplementary preliminary decree is unsustainable. In this context, it is pertinent to note that appellant in the lower Court admitted that A.S. No.815 of 1996 was dismissed by this Court and the decree has become final. Again he cannot contest that there was no declaration of right while allotting shares. In a partition suit, even after R.F.A. No.13 of 2017 9 the preliminary decree, there is no prohibition in passing more than one preliminary decree. If respondent nos.1 and 2 were not impleaded as parties in the suit, another preliminary decree correcting the share of the parties can be passed, if they are found entitled for allotment of shares. Apex Court in **Phool Chand** v. **Gopal Lal [AIR 1967 SC 1470]** held that 'so far as partition suits are concerned, 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 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. However this can only be done so long as the final decree has not been passed.” There may be more than one preliminary decree making variation of shares, if necessary. The reason is that it would be convenient to the court and beneficial to the parties to settle their right in partition suits, by allotting of shares in the preliminary decree before preparing a final decree. R.F.A. No.13 of 2017 10 In this Suit, the preliminary decree was passed on 24.11.1995 by allotting one share to the plaintiffs/respondent 3 to 17 herein. Subsequently, I.A. No.390 of 2015 was filed for passing supplementary preliminary decree for allotting the shares of defendants in the suit, since no share was allotted to the defendants in the Original Suit. In the circumstances of this case, it is open to the Court to draw up a second preliminary decree. 10. Normally reopening of the suit in order to determine the shares of the parties necessitates a retrial of the suit, especially in cases where disputes among them are not decided. But in certain cases an additional or supplementary preliminary decree can be passed, provided the preliminary decree determines the shares of defendants and no further enquiry is necessary regarding the disputes among the defendants inter se. A supplementary preliminary decree can be passed in cases where defendants subsequently claim the remaining shares, either jointly or severally, without raising any R.F.A. No.13 of 2017 11 further contention. The purpose of passing a supplementary preliminary decree is to ensure that the reliefs which can be worked out in the same suit itself are to be determined in the same suit without referring the parties to a separate suit. Courts have a duty to see that the multiplicity of proceedings are to be prevented and the rights of parties must be determined in the same suit itself. The reopening of the case for passing a supplementary preliminary decree is only for the limited purpose of allotment of shares, in whose favour such an order has not been passed earlier. In such circumstances parties should not be allowed to reagitate the matter by getting the suit reopened. In the present case, share in Plaint item No.1 and 2 of Achutha Shenoy was divided into three equal parts. If this is done, there is a clear determination of the rights of the parties to the suit on the question in dispute and there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. 11. In **Perumal Vadyar and Others** v. **Devi** R.F.A. No.13 of 2017 12 **and Others [1991 KHC 3],** in para 14 and 15, it was held as follows: 14. What are the circumstances in which a supplementary preliminary decree can be passed is the next aspect to be considered. Some of the grounds available to the parties had been pointed out by this Court in Kunhirama Kurup's case (supra). But as observed earlier they are not exhaustive, but only illustrative. In a case where there, had been determination of the shares of all parties, there may not be any difficulty. In a case where shares were declared, but separate allotment was not allowed to defendants on account of non payment of requisite court fee, no further enquiry is contemplated whereas only a formal amendment of the preliminary decree directing allotment of shares to the defendants who had filed written statements need be made provided they had paid court fee since then. Similarly shares due to sharers who are ex parte in the suit can also be ordered to be allotted provided the shares had been determined in the preliminary decree and no further enquiry is necessary either regarding shares or any other issue between the parties and defendants claim R.F.A. No.13 of 2017 13 only separation and allotment of the shares so determined. The augmentation or reduction of shares due to death of one of the sharers also does not pose any difficulty since the same can be done by requesting the court for redetermination of shares consequent to the death of a sharer. Redetermination of shares can also be made in case of acquisition of property or a portion of the property since the date of preliminary decree or destruction of property by fire or loss of property or portion of the property by sea erosion or for similar reasons. 15. Difficulty may arise only in cases where defendants had filed written statements opposing the claim of plaintiff and had not sought determination and separation of their shares. I have also considered the decisions in Chinnappa Gowda and others Vs. N.C.Rajasekhara & others [2016 KHC 4100], [2016 KHC 3060], Raveendran C.G., & Others V. C.G. Gopi & others [2015 KHC 616], Sabitri Pal Vs. Ramendra Kumar Das [2014 KHC 5054], Ramesh M.B. (D) by LRs Vs. K.M.Veerage and others [2013 KGC 4372(SC)], Dault Ram and others V. Sodha and Others R.F.A. No.13 of 2017 14 [2005 KHC 336], and S.V. Muthu and others V. Veerammal and another [AIR 1981 Madras 307] relied on by the appellant. 12. The appellant herein contended that as per the WILLS dated 03.01.1993 executed by the appellant's parents, he obtained the ownership and possession of the plaint schedule properties after the death of the parents. Appellant admitted that he is the son and the 1[st] and 2[nd] respondents are the daughters of Achutha Shenoy and Kamala Bai. Appellant claimed that he got right over the plaint schedule property by virtue of Exts.B1 and B2 will which was executed by Achutha Shenoy and Kamala Bai. In the lower court RW1 and RW2 were examined as attestors of Exts.B1 and B2. The evidence of RW1 shows that the Will dated 03.09.1993 was signed by the deceased Achutha Shenoy and Kamala Bai in his presence. Both were physically and mentally fit and RW1 identified the signatures in Exts.B1 and B2. But he deposed that he did not know the whereabouts of the 2[nd] witness and whether Achutha Shenoy and Kamala Bai R.F.A. No.13 of 2017 15 signed in Exts.B1 and B2 before he had put signature in the document. He has no knowledge with regard to the 1[st] respondent. RW2 also admitted the signatures in Exts.B1 and B2. During cross examination he admitted that he did not see who signed in Exts.B1 and B2. In the light of the above evidence, the learned Judge found that the execution of the Will was not proved. PW2 stated that the signatures in Exts.B1 and B2 are not that of their parents and no documents were produced to prove the signature as shown in Exts.B1 and B2 as that of his parents. 13. A document written and produced by the person making the statement on his behalf before Court has the responsibility to prove its accuracy. Execution designate the entire process including signing by the executant and attestation by the witness. Execution is not a mechanical act of signing the document or getting it signed, but an intelligent assessment of the contents of the document and signing it in token of the acceptance of the contents. Where a main signature appears in a document at a place where executant of such document R.F.A. No.13 of 2017 16 would normally sign, then the signature may prima facie be taken as having been put in token of execution. Basically speaking, the proof of admission of a signature in a document requiring execution in a particular form is prima facie proof that the document was executed by the signatory, because normally a person only puts a signature in a document as a part of its execution. When one or more persons were present at the time of execution of the deed in evidence they have to give evidence to prove the attestation clause as a witness of execution. RW1 has stated in the proof affidavit that he had signed the WILL Deeds in the presence of another witness and also during cross examination, he has stated that the witness who signed the WILLs was present in the Court. RW3 is the appellant herein who filed a proof affidavit and was cross examined. In the absence of corroborative evidence, the lower court found that the genuineness of Exts.B1 and B2 were not proved. In the light of the above finding, it was held that the legal heirs of Achutha Shenoy and Kamala Bai are entitled to get 17 R.F.A. No.13 of 2017 equal share and passed a supplementary preliminary decree. Therefore the second preliminary decree passed in the partition suit is confirmed and the shares allotted in the preliminary decree already passed can be amended and if any dispute between surviving parties in that behalf is decided, then the same amounts to a decree. However, I make it clear that this can be done so long as the final decree has not been passed and therefore I reject the contention of the appellant. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge