Ashok Pandey and others v CHANDRAMATHIAMMA and SREEMATHIAMMA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 3RD DAY OF DECEMBER 2013/12TH AGRAHAYANA, 1935 RSA.No. 802 of 2013 () ----------------------AGAINST THE JUDGMENT IN AS 177/2009 of DISTRICT & SESSIONS COURT,PATHANAMTHITTA AGAINST THE JUDGMENT/ORDER I.A. 2581/2004 IN OS 321/1997 of MUSNIFF COURT,ADOOR APPELLANT(S): ----------- 1. ASHOK PANDEY AGED 56 YEARS, S/O. RAMSAJIWAN PANDEY, MANMIT APARTMENTS, GUPTESHWAR, JABALPUR, MADHYA PRADESH 2. AISHWARIYA PANDEY, AGED 27 YEARS, D/O. ASHOK PANDEY, MANMIT APARTMENTS, GUPTESHWAR, JABALPUR, MADHYA PRADESH 3. AASHUTHOSH PANDEY, AGED 26 YEARS, S/O. ASHOK PANDEY, MANMIT APARTMENTS, GUPTESHWAR, JABALPUR, MADHYA PRADESH 4. VALSALA S. PILLAI, AGED 44 YEARS, W/O.LATE SOMAN R.PILLAI @ SOMAN PILLAI SREEPADOM @ THURUTHIYIL VADAKKETHIL, ARUKALICKAL WESTMURI, EZHAMKULAM VILLAGE, ADOOR (MUNJANATTU HOUSE, VAYALA P.O.), ARUKALICKAL WEST MURI, EXHAKULAM VILLAGE, ADOOR -2- ## RSA.No. 802 of 2013 () 5. AROMAL S. PILLAI, AGED 39 YEARS, S/O. LATE SOMAN R. PILLAI @ SOMAN PILLAI, SREEPADOM @ THURUTHIYUIL VADAKKETHIL, ARUKALICKAL WESTMURI, EZHAMKULAM VILLAGE, ADOOR (MUNJANATTU HOUSE, VAYALA P.O. ARUKALICKAL WEST MURI, EZHAMULAM VILLAGE, ADOOR), 6. ANURUPA S. PILLAI AGED 24 YEARS, D/O. LATE SOMAN R. PILLAI @ SOMAN PILLAI, SREEPADOM @ THURUTHIUIL VADAKKETHIL, ARUKALICKAL WEST MURI, EXAHMULAM VILLAGE, ADOOR ( MUNJANATTU HOUSE, VAYALA P.O. ARUKALICKAL WEST MURI, EZHAMULAM VILLAGE, ADOOR), BY SR. ADV. SRI.T. KRISHNANUNNI & ADVS. SRI.JACOB P.ALEX & SRI.JOSEPH P.ALEX ## RESPONDENT(S): - ------------- 1. CHANDRAMATHIAMMA, AGED 62 YEARS, D/O. BHAVANIYAMMA, THEKKEKALEECKAL HOUSE, MUTHUPILAKKADU PADINJAREKKARA MURI, SASTHAMKOTTA VILLAGE - 689 645 2. SREEMATHIAMMA, AGED 60 YEARS, D/O. BHAVANIYAMMA, THEKKEKALEECKAL HOUSE, MUTHUPILAKKADU PADINJAREKKARA MURI, SASTHAMKOTTA VILLAGE - 689 645 BY ADVS. SRI.K.S.HARIHARAPUTHRAN & SRI.GEORGE MATHEW THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **N.K.BALAKRISHNAN, J.** **............................................ R.S.A. No. 802 of 2013 ............................................ Dated: 03-12-2013** ## **JUDGMENT** This Second Appeal is filed challenging the final decree passed by the trial court, which was affirmed by the appellate court. The suit was originally filed by three plaintiffs against three defendants for a declaration that the plaint schedule property belonged to the plaintiffs and for recovery of possession of the same with mesne profits and also for injunction restraining the defendants from committing acts of waste in the property. The suit was resisted contending that the plaint schedule property is a co-ownership property. The suit was ultimately decreed declaring the right of plaintiffs 2 and 3 in the plaint schedule property as the legal heirs of deceased Raman R.S.A. No. 802 of 2013 **2** Pillai along with the defendants and that the partition deed no.526/1997 executed by the defendants is not binding on plaintiffs 2 and 3. An injunction was granted against committing waste in the plaint schedule property. 2. The suit was decreed to the effect that the plaint schedule property belonged to plaintiffs 2 and 3 (as legal heirs of Raman Pillai) and the defendants. Based on that decree plaintiffs 2 and 3, whose share in the property had been determined, filed application for passing a final decree for effecting partition of the property. In that application , though objection was filed, the defendants contended that their share be separately allotted by effecting division of the property through an Advocate Commissioner. Accordingly, the Advocate Commissioner measured the property and effected division of the same. 3. Defendants 1 and 2 are the children of the 3[rd] defendant born through Raman Pillai. It was found in that suit that the 3[rd] defendant and Raman Pillai had long and continuous cohabitation and that defendants 1 and 2 were born to the 3[rd] defendant in that relationship. Therefore, R.S.A. No. 802 of 2013 **3** defendants 1 to 3 (wife and two children) were also found entitled to a share in that plaint schedule property. The decree passed by the trial court was not challenged in appeal. Since the defendants did not dispute the partibility of the property and since they did not object to the causing of division of the property in the final decree application filed by plaintiffs 2 and 3, the trial court issued a Commission for effecting division of the property. The Advocate Commissioner filed report and plans which were marked as Exhibits C1 to C5 and based on the same the final decree was passed. 4. The plaint schedule property was found to be measuring 88¼ cents (equivalent to 35.73 Ares). It was located in Ext.C3 plan as plot 'HFEDCBAK'. Out of that plot 'MDCN' was allotted to the plaintiffs, the extent of which was shown as 39.810 cents. Plot 'HFEMNBAK', having an extent of 48.440 cents, was allotted to the respondents. That was in respect of one item of properties. One of the other items shown in Ext.C4 plan, the total extent of which was found to be 24.205 cents, was located as 'AHBCDE'. R.S.A. No. 802 of 2013 **4** Out of that plot an extent measuring 9.682 cents shown as 'HBCD' in Ext.C4 plan was allotted to the plaintiffs, whereas the plot 'AHDE', measuring 14.523 cents, was allotted to the respondents. Ext.C5 plan is with regard to another item. The extent of that item available was found to be 33.185 cents. It was shown as plot 'EFHABCDE', out of which the plaintiffs were alloted plot 'MNAB' measuring 13.274 cents and the remaining extent measuring 19.911 cents, shown as 'EFHMNMCDE', was allotted to the respondents. Ext.C1 report shows the valuation of the different items of property. 5. The following are the substantial question of law raised by the learned counsel for the appellants:- - _i) Is it permissible under law to render a final judgment for partition based on a judgment in a suit for injunction ?_ - _ii) Did not the Courts below err in passing a final judgment for partition in a suit filed not in accordance with Chapter VI, Part C of the Civil Rules of Practice, Kerala ?_ - _iii) Is it permissible to pass a final judgment for partition when the suit itself is valued only under Section 25 (b) of Act X of 1960 ?_ R.S.A. No. 802 of 2013 **5** - _iv) Did not the courts below err in not finding that after rendering the judgment dated 21-12-2000 in O.S. 321 of 1997, the court has become functus officio and as such it cannot entertain I.A. 2581 of 2004 for partition ?_ - _v) Is the finding in the judgment in A.S. 177/2009 of District Court, Pathanamthitta that the appellants are not aggrieved persons is perverse and unsustainable in the facts and circumstance of the case ?_ 6. In the suit it was found by the trial Court that first plaintiff was the legally wedded wife of Raman Pillai and that plaintiffs 2 and 3 were the children born to the first plaintiff in that wedlock. But that marriage between the first plaintiff and Raman Pillai was dissolved as per Ext. B3 marked therein on 18-4-1953 and so it was found that the first plaintiff was not entitled to succeed to the estate of deceased Raman Pillai who expired in 1997. But so far as plaintiffs 2 and 3, who are the children are concerned they were found entitled to succeed to the estate of Raman Pillai. It was also found that Raman Pillai and the third defendant were living together and there was long cohabitation between Raman Pillai and the third defendant in that suit. Defendants 1 and 2 were born in that relation R.S.A. No. 802 of 2013 **6** ship. Therefore, defendants 1 to 3 were also entitled to succeed to the estate of deceased Raman Pillai. It came out from the evidence on record that the defendants were in possession of the plaint schedule property as the legal heirs of deceased Raman Pillai. It was found that plaintiffs 2 and 3 were also having right in the property. Going through the judgment in the suit and the reliefs granted by the Court it is clear that plaintiffs 2 and 3 and defendants 1 to 3 were having equal right over the property. Since a declaration was granted to that effect according to the respondents it would amount to granting a preliminary decree directing division of the suit property into five equal shares and allotting two shares to plaintiffs 2 and 3 (one share each to plaintiffs 2 and 3) and one share each to defendants 1 to 3. 7. It is important to note that though the plaintiffs who sued for a declaration that they are the exclusive owners of the property did not file any appeal against the decree which was moulded by the trial Court in the manner indicated above. Therefore, that decree became final. It is R.S.A. No. 802 of 2013 **7** true that the trial Court did not pass a preliminary decree for partition. That has been projected as the main ground by the learned Senior counsel appearing for the appellants to contend that since no preliminary decree was passed, the trial court was denuded of jurisdiction to pass a final decree for partition and as such the final decree passed by the trial Court and which was confirmed by the appellate court is non est and it has to be set aside. This contention has been stoutly resisted by the learned counsel for the respondents. 8. It is important to note that the respondents herein treated the decree granted by the trial court as a preliminary decree for partition. Hence, they filed an application for passing a final decree. When notice was received the appellants herein filed an objection statement but in that objection statement no contention was raised to the effect that the final decree petition is unsustainable since no preliminary decree was passed. In fact on going through the objections filed by the appellants it is clear that they also treated the decree granted by the trial court R.S.A. No. 802 of 2013 **8** as a preliminary decree. Specific requests were made by the appellants herein for causing division of the property into five equal shares and to allot the due shares to the appellants. Request for reservation of a sum of Rs. 1,50,000/- stated to have been spent for the construction of the house was also sought for in that statement. Similarly, a request was also made for allotment of the house to the share of the appellants. Another contention that was raised by the appellants in the application is to the effect that in case the property, where the house (stated to have been constructed by the appellants) is allotted to the share of the appellants, then the appellants should be given the value of the building. How the property is to be divided and what is the reservation or equity the appellants are entitled to are stated in detail in the objection statement. No contention whatsoever was taken by the appellants to the effect that no final decree can be passed based on the decree granted by the trial court. Therefore, though a preliminary decree for partition was not actually passed by the trial Court the **9** R.S.A. No. 802 of 2013 decree granted by the trial court was treated as a preliminary decree and accordingly both of them proceeded to have the property partitioned by metes and bounds causing division of the property into five equal shares and to allot three shares to the defendants and two shares to the plaintiffs 2 and 3. When that was the definite stand taken by the appellants before the trial Court the argument belatedly advanced by the appellants before this Court that the trial Court had no jurisdiction to pass a final decree for partition is found to be bereft of any merit. 9. It is true that though the suit was one for declaration, the trial court could have in the facts and circumstances of the case, passed a preliminary decree for partition determining the share of each of the parties to the suit . But the argument vehemently advanced by the learned counsel for the appellants, that the trial court had no jurisdiction to pass a final decree eventhough the appellants did not raise any objection as to the sustainability of such a petition is unacceptable. It is not a case where the trial court had no jurisdiction to pass a R.S.A. No. 802 of 2013 **10** final decree. If at all it can only be said that the final decree passed by the trial court is only a wrong decree. It cannot be said that it is totally incurable. 10. The endeavour of the court should be to mould the relief in such a way as to give a quietus to the litigation and not to drive the parties to another litigation. If the argument advanced on behalf of the appellants is accepted, then after the decree was passed by the trial Court the respondents should have again filed a suit for partition of the property based on the finding entered by the court in the suit. That according to me was not required in the particular facts and circumstances of the case, especially because the appellants had chosen to submit to the jurisdiction of the trial court to have the property partitioned into five equal shares and to allot two shares to plaintiffs 2 and 3 and to allot the remaining shares to defendants 1 to 3. At the risk of repetition, I must state that no contention whatsoever was raised by the appellants as to the unsustainability of an application for passing a final decree for partition. R.S.A. No. 802 of 2013 **11** 11. Since no such contention was raised before the trial Court the trial court had no occasion to state anything regarding those aspects. But the appellants chose to file an appeal before the appellate Court. The appellate court after considering all all the rival contentions held that the final decree passed by the trial Court does not suffer from any legal infirmity. The lower appellate court has found that in fact the appellants have also filed I.A. No. 2007/2006 for passing of final decree for allotment of their share. Of course, the learned senior counsel appearing for the appellants would vehemently argue that the lower appellate court has proceeded on the premise that a preliminary decree was passed and that was why the lower appellate court has observed that if a party does not challenge a preliminary decree then he shall be precluded from disputing the correctness of the same in the appeal which may be preferred from the final decree. Of course, it can be argued that since no preliminary decree for partition as such was passed by the trial Court, the contention that the appellants cannot challenge the R.S.A. No. 802 of 2013 **12** preliminary decree in the final decree passed by the trial court, may not be acceptable as such. But at the same time, in view of the statement filed by the appellants for effecting division of the property into five shares and to allot three such shares to them, that too seeking allotment of the house in the suit property to the share of the appellants, it is too late in the day for them to contend that final decree should not have been passed by the trial Court. 12. Since the decree declaring the share of plaintiffs 2 and 3 and defendants 1 to 3 was not appealed against by the appellants, they are precluded from contending that the property is not available to be divided by metes and bounds into five equal shares and to allot two such shares to the plaintiffs 2 and 3 and the remaining three shares to defendants 1 to 3. Though a preliminary decree as such was not drawn up still it can be discerned that the share which the plaintiffs 2 and 3 and defendants 1 to 3 were entitled to was determined by the trial court. That decree became final. Therefore, the contention that since no R.S.A. No. 802 of 2013 **13** preliminary decree was passed there was no necessity of filing an appeal does not appear to be sound or reasonable. The lower appellate court has observed that the appellants can have no legal grievance against the decision. They were not wrongfully deprived of anything. The rights of the appellants are not adversely affected by passing a final decree, that too, when the appellants did not raise any objection as to the maintainability of the application for passing a final decree, and when they themselves wanted the allotment of their share. They also submitted to the jurisdiction of the trial Court and requested for effecting division and allotment of the share in the objection statement filed by them. Therefore, having taken one posture the appellants are estopped from contending otherwise at the stage of appeal or Second Appeal. 13. It is not usually permissible to have a preliminary decree for partition in a suit for injunction or declaration of title. Similarly, without a preliminary decree a final decree cannot be passed. But here, the position is R.S.A. No. 802 of 2013 **14** different. The trial court was persuaded to pass a decree declaring the rights /shares of the parties in view of the fact that the parties were claiming title under deceased Raman Pillai who was the common ancestor of whom plaintiffs 2 and 3 are the children born to Raman Pillai in an earlier lawful wedlock, the first defendant was held to be the widow and defendants 2 and 3 were found to be the children of the first defendant born through deceased Raman Pillai. It was in that context the trial court passed such a decree. It is always open to the court to mould the relief so as to advance the cause of justice and not to drive the parties to another litigation projecting hyper technicalities. The question as to whether the court fee was paid under Sec. 25 (b) or under Sec. 37 (1) or (2) of the court fees act may not ultimately affect the decree passed by the court. The contention that after the passing of the judgment in the suit the court became functus officio and so that court had no jurisdiction to entertain I.A.2581/2004 for partition is also found to be devoid of any merit since both parties had treated the decree passed in O.S. 321/1997 R.S.A. No. 802 of 2013 **15** as a preliminary decree for partition and that was why the appellants also chose to claim their share by effecting division of the property into five equal shares. The appellants did not challenge before the trial Court the maintainability of the application for passing final decree. Since the lower appellate Court has found that since the decree and judgment in O.S. 321/1997 was not challenged by the appellants that decree has become final. There can be no doubt regarding the same. It is true that the decree was not worded as a preliminary decree. But in effect it was actually a preliminary decree. It was accepted by the appellants as well in the application for final decree filed by the respondents. 14. In this connection the decision of the Karnataka High Court in **Rangappa v. Jayamma - ILR 1987 Karnataka 2889** can be referred to. That was a case where the trial court did not pass a preliminary decree for partition since that was not one of the reliefs sought for in the suit. In fact that was only a suit for declaration of title and injunction just like a suit in this case, O.S. 321 of R.S.A. No. 802 of 2013 **16** 1997. It was held that the provisions contained in Order VII Rule 7 C.P.C. are of very wide terms and so it was held that the trial court was not justified in refusing to pass a preliminary decree for partition and separate possession of the plaintiff's half share in the suit properties. Thus the Division Bench of the Karnataka High Court allowed the appeal and in modification of the decree of the trial court, preliminary decree for partition and separate possession of the plaintiff's half share in the suit property was passed. Therefore, the learned counsel for the respondents would submit that, that was actually a case where the trial Court did not grant a preliminary decree but the Hon'ble High Court chose to pass a preliminary decree moulding the relief, finding fault with the trial court for not passing a preliminary decree. Therefore, the courts below cannot be found fault with for entertaining an application for passing a final decree in terms of the decree granted by the trial court, though the decree is not styled as a preliminary decree. But in effect, it should be treated as the preliminary decree. R.S.A. No. 802 of 2013 **17** ## 15. It was held by the Hon'ble Supreme court in **Kedarlal v. Harilal - (1952) 1 SCR 179** : “The Court would be slow to throw out a claim on a mere technicality of pleading when the substance of a thing is there and no prejudice is caused to the other side and it is always open to a Court to give the plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs”. ## Similarly, in **Gangaram Ramachandra v. Buthru Sao and Others - AIR 1952 Nag 202** it was held: “There is no reason why a suit for exclusive possession of 16 Annas cannot be turned into a suit for partition and possession of such share as may be determined to belong to the plaintiff, if the defendants, contend or it is found that the plaintiff is not entitled to the whole but only to a part” 16. The learned Senior Counsel appearing for the appellants would submit that there is no dispute regarding the proposition of law propounded as afore quoted but so far as the case on hand is concerned, no preliminary decree for partition was passed and so the trial court had no jurisdiction to entertain an application for passing a final decree. It is further submitted that had the trial Court R.S.A. No. 802 of 2013 **18** passed a preliminary decree for partition, then certainly, if it was not appealed against, then the parties would be bound by the decree so passed but no such preliminary decree was passed and as such the decisions referred to above cannot have any application. When a party claims exclusive title to the suit property and when it was found that the party was not in exclusive possession of the property but was only a co-owner along with the defendants and when their share is determined, it will not be unjust for the court to pass a decree for partition. When a larger relief is claimed and what is established is not the entire relief claimed in the suit, it does not preclude the court from granting a smaller relief or mould the relief in such a way so as to advance the cause of justice. Therefore, the trial court was not precluded from passing a preliminary decree for partition. The decree passed by the trial court was not worded as a preliminary decree but the parties understood and treated the same as a preliminary decree for partition and that was why both sides submitted to the jurisdiction of the court and applied for passing a final R.S.A. No. 802 of 2013 **19** decree in terms of the shares determined in that suit. 17. The parties cannot confer jurisdiction by consent, the learned Senior Counsel for the appellants argues. But is not a case where the court which passed the decree had no jurisdiction over the subject matter. Therefore, it cannot be termed as a case where the court which was lacking inherent jurisdiction, assumed jurisdiction by consent of the parties. Here, the contention that the trial court had no jurisdiction at all to pass a final decree cannot be countenanced. If at all it can only be said that the procedure followed by that Court is wrong. Even if the procedure adopted by that court is wrong, it cannot be said that the decree ultimately granted by that court which was in tune with or in consonance with the plea raised by the parties would ipso facto become illegal or unsustainable. The procedural errors or technicalities should not be allowed to upset a concurrent verdict passed by the courts below especially when there is no glaring illegality in the ultimate decision rendered by the courts below. R.S.A. No. 802 of 2013 **20** 18. Order VI Rule 7 C.P.C. provides that it is not necessary that the plaintiff should ask for general or other reliefs it may always be given as the court may think just to the same extent as if it had been asked for. Therefore, the court may grant reliefs even on the grounds other than those claimed in the plaint. 19. It was held by the Hon'ble Supreme Court in **Firm Sriniwas Ram Kumar v. Mahabir Prasad and Others - AIR (38) 1951 SC 177** that a plaintiff may rely upon different rights alternatively and there is nothing in the C.P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether in the absence of any such alternative case in the plaint, it is open to the court to give him relief on that basis. It was held by the Apex Court that the rule undoubtedly is that the Court cannot grant reliefs to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case R.S.A. No. 802 of 2013 **21** which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. When that theory is applicable to a suit is is equally applicable to an application for Final Decree. 20. Had the appellants raised any objection in the trial court entertaining the application for Final Decree that could have been raised as a preliminary point in which event the trial court could have decided that maintainability question first but no such question was raised before the first court. 21. Though the facts are not identical it was held by the Supreme Court in **Gopala Krishna Pillai and others v. Meenakshy Ayal and Others AIR 1967 SC 155** that a court may grant future mesne profits in a suit for possession and mesne profits eventhough they are not specifically prayed for. 22. **Smt. Nandarani Mazumdar v. Indian Airlines** R.S.A. No. 802 of 2013 **22** **and Others - AIR 1983 SC 1201** was a case where in fact it was found that Execution Petition should have been filed and a separate suit was not maintainable. As a measure of ex debito justitiae it was held by the Apex court that the suit could be treated as an execution petition. It was found that there is good authority for converting an execution application into a suit and so there could be no valid objection to the counter-process of converting a suit into an execution proceedings, particularly when an illadvised would on account of some procedural error is likely to be deprived of the fruits of an order of maintenance. Though the facts dealt with therein are entirely different, the court can in exceptional circumstances, as a measure of ex debito justitiae mould the relief so as to advance the cause of justice. The rules, procedure and technicalities of law should not stand in the way of administration of justice. Procedures are only handmaids and not the mistress of law. The law should bend before justice. The decision in **Nandarani 's Case** (supra) was followed by the Supreme Court in **K.R.** R.S.A. No. 802 of 2013 **23** **Lakshminarayana Rao v. New Premier Chemical Industries - (2005) 9 SCC 354.** Of course in that case it was held that the question of exercising the courts power ex debito justitiae does not arise as the same would result in futility. But at the same time, the Apex Court has found that in certain cases the Court can exercise the power to do complete justice to the parties. 23. It appears, the trial Court which entertained the final decree application did not notice the fact that no preliminary decree for partition was passed especially because the appellants herein also submitted to the jurisdiction of that court and sought for division of the property into five shares and sought allotment of the two shares which the appellants were entitled to get. No doubt, when a preliminary decree for partition is not passed, the court may not pass the final decree . But at the same time, in the peculiar factual backdrop of this case which started in the year 1997 it would be unjust to drive the parties to another suit for partition to have a preliminary decree and then to apply for passing a Final Decree which may take R.S.A. No. 802 of 2013 **24** decades together to have the final culmination. No prejudice whatsoever was caused; the appellants themselves had actively participated in the Final Decree application without demur. Hence, it would be a negation of justice to upset the final decree on the ground of technicality or for procedural lapses. Therefore, though it can be said that there was procedural lapses in entertaining an application for final decree in the absence of a preliminary decree, considering the peculiar circumstances obtained in this case, I am not inclined to upset the final decree passed by the courts below. It is confirmed. All the points are answered against the appellants. In the result, this Second Appeal is dismissed. _Dated this the 3[rd] day of December, 2013._ **Sd/-N.K. Balakrishnan Judge.** /true copy/ P.S. to Judge