Brijitha and Others v. Annie George and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** ## **MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932** **WP(C).No. 33175 of 2008(Y) --------------------------------------....................** **1. BRIJITHA, AGED 78, W/O. LATE MATHEW, KULANGARA HOUSE, AYROOR, KURMASSERY.** **2. JOLLY THOMACHAN, AGED 46, W/O. THOMAS, KANAT, 2/1706A, JASMINE MANZIL, FLORICAN ROAD, KARIKKAMKULAM, KARAPARAMBU, KOZHIKODE -10.** **3. JESSY VINCENT, AGED 34, W/O. VINCENT, PANIKULANGARA HOUSE, AYROOR.P.O, PUTHENVELIKKARA.** **BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR, SRI. P. VISWANATHAN.** **1. ANNIE GEORGE, AGED ABOUT 65, W/O. GEORGE, AMBATTU HOUSE, MURINGOOR,** **2. SUNIL, AGED ABOUT 35, S/O.GEORGE, AMBATTU HOUSE, MURINGOOR,CHALAKUDY.** **3. SUJITH GEORGE, ABOUT ABOUT 32, S/O.GEORGE, AMBATTU HOUSE, MURINGOOR,CHALAKUDY.** **4. ANTONY, AGED ABOUT 68, S/O. THOMAS, GULLABOB J. SHUKLA, OPP. SWAMY NARAYAN KRIPA, SUKIYA NAGAR SHERI NO.5, NEAR RAJKOT AERODROME,** **5. A.T. MARY, AGED ABOUT 66, W/O. ANTONY, ADAMPOOKULAM HOUSE, VADAKKE ANGADY, KORATTY.** **W.P.(C). NO.33175/2008-Y:** ## **6. JOSEPH, AGED ABOUT 85,** **S/O. LATE GERVASIS, AMBATTU, ALUVA WEST VILLAGE, ALUVA.** ## **7. BABU, AGED ABOUT 46,** **S/O. JOSEPH, AMBATTU HOUSE, ALUVA WEST VILLAGE, ALUVA.** ## **8. TESSY JOSEPH, AGED ABOUT 70,** **W/O. LATE JOSEPH, AMBATTU HOUSE, NEAR PAULSON DISTILLARY, MURINGOOR, NOW RESIDING AT KURISINGAL HOUSE, WEST CHALAKUDY, MOONJELY, PIN - 6809 315.** ## **9. RAJESH.T. JOSEPH, AGED 43,** **S/O. LATE JOSEPH, AMBATTU HOUSE, NEAR PAULSON DISTILLARY, MURINGOOR.** ## **10. MAREENA RABEL, AGED 45,** **D/O. LATE JOSEPH, H. NO. 6-3-171/10, REDDY APARTMENT, JAI NAGAR COLONY, NEW BHOIJUDA, SECUNDERABAD, NOW RESIDING AT KURISINGAL HOUSE, WEST CHALAKUDY, MOONJELY, PIN - 680 315.** **11. SEENA THOMAS, AGED ABOUT 40, D/O. LATE JOSEPH, KAVALAKKATU HOUSE, PARAPPURAM, KUZHUR.P.O.** **12. SHERLY DAVIS, AGED ABOUT 67, W/O. LATE DAVIS, AMBATTU HOUSE, BEHIND TOWN HALL, ERNAKULAM NORTH.** **13. SAMSON DAVIS, AGED ABOUT 45, S/O.LATE DAVIS, AMBATTU HOUSE, BEHIND TOWN HALL, ERNAKULAM NORTH.** **14. STALIN DAVIS, AGED ABOUT 42, S/O. LATE DAVIS, AMBATTU HOUSE, BEHIND TOWN HALL, ERNAKULAM NORTH.** ## **15. SOLOMON DAVIS, AGED 39,** - **S/O. LATE DAVIS, AMBATTU HOUSE, BEHIND TOWN HALL, ERNAKULAM NORTH.** **R1 TO R3 & R7 BY ADV. SRI.P.CHANDY JOSEPH, R4 BY ADV. SRI.SHIBU JOSEPH, R5 BY ADV. SRI.JOSE JOSEPH, R8 TO R15 BY ADV. SRI.SAJU J.VALLYARA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C). NO.33175/2008-Y:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE DECREE PASSED IN O.S. NO. 326/1994.** **EXT.P.2: COPY OF THE DECREE PASSED IN A.S. NO. 36/1999, ON THE FILE OF THE DISTRICT COURT, PARUR.** **EXT.P.3: COPY OF THE SALE DEED NO.3065/1998.** **EXT.P.4: COPY OF THE SALE DEED NO.3446/1998.** **EXT.P.5: COPY OF THE I.A. NO.1385/2006 IN O.S. NO.326/1994, ON THE FILE OF THE MUNSIFF'S COURT, ALUVA.** **EXT.P.6: COPY OF THE OBJECTION FILED BY THE R.2. IN I.A. NO. 1385/2006.** **EXT.P.7: COPY OF THE OBJECTION FILED BY RESPONDENTS 4 AND 6 TO 10.** **EXT.P.8: COPY OF THE OBJECTION FILED BY THE R.5. IN I.A. NO. 1385/2006.** **EXT.P.9: COPY OF THE I.A. NO. 1386/2006 IN O.S. NO. 326/1994.** **EXT.P.10: COPY OF THE UNNUMBERED PETITION DTD. 10/01/2007, FILED IN O.S. NO. 326/1994.** **EXT.P.11: COPY OF THE ORDER IN C.R.P. NO. 391/2008.** **EXT.P.12: COPY OF THE MEMO DTD. 02/07/2008 SUBMITTED BY THE COUNSEL FOR THE PETITIONERS.** **EXT.P.12.A: COPY OF THE READABLE COPY OF THE ORDER DTD. 30/08/2008.** **EXT.P.13: COPY OF THE ORDER DTD. 30/08/2008 PASSED IN EXT.P.12.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **Prv.** ## **HARUN-UL-RASHID,J.** ## **-------------------------------** ## **W.P.(C).NO.33175 OF 2008** ## **-------------------------------** **DATED THIS THE 14TH DAY OF FEBRUARY, 2011** ## **JUDGMENT** This writ petition is filed for the following reliefs: “A) Call for the records in O.S.No.326/94 on the file of the Munsiff's Court, Aluva. B) Issue a writ or direction setting aside the orders passed in Ext.P12 memo (Ext.P12(a) and P13 order dated 30/8/2008) and order to receive Exts.P5, P9, P10 and P12 memo and all records returned to the petitioners and proceed with the final decree proceedings by deputing an Advocate Commissioner to effect partition of the properties described in Ext.P1 preliminary decree in accordance with the said decree.” 2. The lst petitioner is the sole plaintiff in O.S.No.326/94 on the file of the Munsiff's Court, Aluva. The suit was filed for partition. The plaintiff claimed 1/9 share. Ext.P1 is the preliminary decree dated 26/2/1998. The property was divided allotting 1/9 share to the plaintiff, 1/9 share each to defendants 5, 6, 7 and 8, 2/9 share to the 3[rd] defendant and 1/9 share each to defendants 1 and 10. **-2-** WP(C).No.33175/2008 Preliminary decree was confirmed by the Appellate Court in A.S.No.36/99. Ext.P2 is the decree passed by the Appellate Court. 3. After the passing of the preliminary decree, the 6[th] defendant, who is one of the sisters of the plaintiff, died. Plaintiff and all the defendants inherited her share. Therefore, it has become necessary to add 1/72 shares to the shares allotted to each and every sharers. During the pendency of the suit, the 3[rd] defendant purchased the 4[th] defendant's share. Therefore, in the preliminary decree 2/9 share was allotted to the 3[rd] defendant, which includes 1/9 share of the 4th defendant. 4. Subsequent to the death of the 6[th] defendant, defendants 5, 7 and the plaintiff sold their shares in favour of the plaintiff's husband as per Ext.P3 sale deed dated 16/10/1998. Later, the plaintiff's husband died on 7/4/2001. The petitioners 2 and 3 in the writ petition, who are the daughters of the deceased husband of the plaintiff got impleaded as additional respondents 9 and 10 in A.S.No.36/99, since their father died during the **-3-** ## WP(C).No.33175/2008 pendency of the appeal. The 4[th] defendant also sold his share in favour of the 3[rd] defendant. The plaintiff, defendants 5, 7 and 8 assigned their interest in the property in favour of the husband of the plaintiff. The plaintiff inherited share due to the death of the 6[th] defendant in the suit. The plaintiff, defendants 4, 5, 7, 8 who assigned their original shares, and defendants 1, 3 and 10 who inherited the share of the deceased 6[th] defendant, each are entitled to 1/72 shares of the property. There is another development subsequent to the passing of the preliminary decree. The purchaser of the shares belonging to the plaintiff, defendants 5, 7 and 8 died on 7/4/2001. He left behind the plaintiff, who is his wife, and two daughters. The aforesaid two daughters are additional respondents impleaded in the appeal, who are the petitioners 2 and 3 herein. Due to the death of the husband of the plaintiff, again there occurred changes in the division. The purchase of shares by the husband of the plaintiff, the death of the 6[th] defendant and the plaintiff's husband are the events that take place subsequent to the **-4-** WP(C).No.33175/2008 passing of the preliminary decree; but before passing of the final decree. I.A.No.1385/2006 is the final decree application filed by the plaintiff and her two daughters, marked as Ext.P5. Petitioners moved the final decree court to pass a final decree and to allow 36/72 shares to them. The said petition was filed taking into account the subsequent developments, which I have narrated in detail in the preceding paragraphs. The petitioners also filed Ext.P9 petition to implead the legal heirs of deceased defendants 1 and 3, who also died during the pendency of the final decree application. 5. The facts narrated in the aforesaid paragraphs would reveal that it is not possible to pass a final decree in terms of the preliminary decree passed in this case. Due to the death of parties the shares to be allotted to the sharers underwent changes. Therefore, it has become necessary to pass orders fixing the shares due to each and every sharers taking into account the developments which I have narrated in detail. **-5-** WP(C).No.33175/2008 6. The learned counsel for the petitioner submits that the learned Judge went wrong in holding that Exts.P5 and P10 applications are not in accordance with Ext.P1 preliminary decree. He also submits that the court below failed to take note of the fact that the assignee, his legal representatives and also the legal heirs of deceased sharers are not entitled to file application for passing of final decree. The learned Judge placed reliance on Order XXII Rule 10 of the C.P.C. The learned counsel also pointed out that the court below failed to take note of the fact that due to the death of parties and assignment of shares to some of the parties, there is alteration or changes in the shares and therefore the court is unable to pass a final decree in terms of the preliminary decree passed in this case. In the said circumstances, the learned counsel submits that the court below ought to have allowed the application for passing of final decree in terms of assignment and devolution of interest by deputing an Advocate Commissioner to effect division by metes and bounds. The learned counsel also brought to the **-6-** WP(C).No.33175/2008 notice of this Court the decision reported in **Laxmi v. Sankappa Alwa** ( **1989 (2) KLT 264** , in which it was held “that variations or changes in the shares on account of death of party/parties and other developments after the decree affecting the rights and liabilities of the parties can be determined if necessary by passing further preliminary decree or if no effective questions are involved, the matter can be decided in the final decree proceedings itself.” In **(AIR 1990 Andhra Pradesh 263)** it was held as follows: “After the passing of the preliminary decree in a partition suit before passing of the final decree if there has been either enlargement or diminution of the shares or rights of the parties have been changed by reason of the rights that have been conferred by the statue or rights of the parties by a second or or by subsequent purchase by assignments of interest by whatever cause, the Court, before passing its final decree, has to consider and decide the matter and grant a final decree in accordance with such subsequent devolutions to avoid multiplicity of suits and give complete and appropriate relief to all the parties. The mere fact that those parties have been added subsequent to the preliminary decree ad their interest has been found to be affected and they were added as necessary parties, it does not mean **-7-** WP(C).No.33175/2008 that the Court has no right to consider their claims. Since the parties have invoked the jurisdiction of the Civil Court to decide their rights in a partition suit, their rights can be considered at any stage till the passing of the final decree. Till the final decree is passed in a partition suit, the suit is said to be pending; till the final decree signed by the Judge after engrossing the same on the stamps.” 7. The learned counsel also relied on the decision of the Apex Court in **Shub Karan Bubna v. Sita Saran Bubna and others ((2009) 9 SCC 689.** The Apex Court in the said case observed that “ _in many cases where a suit is decreed or preliminary decree is granted within a year or two, the final decree proceedings and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system. In suits_ _for partition and other suits involving declaration of right and ascertainment/quantification of the relief, the process of the suit should be continuous, consisting of the first stage of determination_ _and declaration of the right, second stage of_ **-8-** WP(C).No.33175/2008 _ascertainment/division/quantification, and the third stage of execution to give actual relief.”_ 8. In the light of the decisions referred above and in the light of the developments I have narrated in detail, in order to give a quietus to the litigation by avoiding multiplicity of suits and to extend complete and proper relief to all the parties, it is necessary for the court below to consider and decide alteration or changs in the shares and to pass appropriate orders before deputing a Commissioner for devolution by metes and bounds. In the aforesaid circumstances, I set aside Exts.P12(a) and P13 orders passed by the court below and further direct the court below to receive Exts.P5, P9, P10 applications and P12 memo and any applications if necessitated due to subsequent variations, if any, in the shares and shall pass appropriate orders as expeditiously as possible, before deputing a Commissioner for division, after issuing notice to the parties other than the petitioners and respondents 8 to 15 in the writ petition. It is submitted that the **-9-** WP(C).No.33175/2008 petitioners and respondents 1, 2, 3, 7 and 8 to 15 shall appear before the court below on 10/3/2011. The date of appearance of the parties is fixed as 10/3/2011. Writ Petition is disposed of as above. **HARUN-UL-RASHID, Judge.** **kcv.**