High Court of KeralaSingle Judge2023-11-15Dismissed

Chandran and others v. Amruthavalli and others

Case / Petition Number:CRP No. 15 of 2022; CRP No. 79 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V. G. Arun
Judgment Date: 2023-11-15
Court Decision / Holding: Civil revision petitions dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Chandran
Sathyan
Gopakumar
Thankam
Sujatha
Santha
Saroja

Respondents

Amruthavalli
Nidheesh
Neethu
Prathiba V.C. (sought to be impleaded)

Legal Representation & Advocates

Counsels for Petitioners

• V.M.KRISHNAKUMAR
• P.R.REENA

Counsels for Respondents

• LIJI.J.VADAKEDOM
• REXY ELIZABETH THOMAS
• TOM E. JACOB

Case Synopsis & Summary

This is a Kerala High Court revision petition challenging OS 1390/2012, a partition suit filed in the Munsiff Court, Kodungallur, by Chandran and six co-petitioners. The first defendant died on 10.03.2013, and a preliminary decree for partition was passed on 18.03.2013. Subsequently, the respondents filed an application to set aside the preliminary decree after condoning a delay of about 2171 days. The revision petitioners submit that the suit relates to a nullity since the decree was passed against a dead person, and argue that delay in moving to set aside should be excused given the decree’s void nature. They recount how the final decree process involved an Advocate Commissioner; survey numbers were found non-tally, leading to corrections and eventual auctioning of the property on 22.01.2019. Throughout these proceedings, the respondents participated but did not raise the issue that the preliminary decree had been issued against the deceased. The respondents counter that a decree against a dead person is a nullity and inexecutable, and that concealment and fraud by the plaintiffs justify setting aside the ex parte decree. They cite Supreme Court authorities (Gurnam Singh; Kiran Singh; N. Jayaram Reddy; Ashok Transport Agency; Amba Bai) to demonstrate that void decrees can be challenged. The court ultimately dismisses the revision petitions, upholding the impugned orders and denying the relief sought.

Legal Doctrines & Maxims

Decree passed by a court for or against a dead person is a nullity
A void decree can be questioned at any stage

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioners contended that the preliminary partition decree against a dead person is a nullity; thus the subsequent setting aside of the decree and related delay cannot validate the non-executable decree. They argued that the property survey, correction of survey numbers, and subsequent auction reflect ongoing proceedings in which the respondents were parties, yet they did not raise the ‘death of the defendant’ issue. They relied on Madhuri Goud to argue against accepting counsel’s delay as a justification.

Contentions of Respondents

The respondents argued that a decree passed against a dead person is a nullity and inexecutable, rendering delay immaterial. They asserted concealment and fraud by the plaintiffs as grounds to set aside the ex parte decree. They relied on Gurnam Singh and related authorities to support the proposition that void decrees can be challenged, and contended that these principles justify setting aside the ex parte decree in light of the death of the first defendant.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
B. Madhuri Goud v. B. Damodar Reddy	(2012) 12 SCC 693	Mentioned Only	Cited by petitioners to argue against leniency for delay; court does not adopt as binding authority in its core reasoning.
Gurnam Singh (d) thr. Lrs. and Others v. Gurbachan Kaur (d) by Lrs. and Others	(2017) 13 SCC 414	Positive	Cited to support the proposition that a decree against a dead person is a nullity and void decrees may be challenged.
Kiran Singh v. Chaman Paswan	AIR 1954 SC 340	Positive	Quotations establish the fundamental principle that a null decree’s validity can be questioned in any proceeding.
N. Jayaram Reddy v. LAO	(1979) 3 SCC 578	Positive	Cited to reinforce the nullity principle for decrees issued against a dead person.
Ashok Transport Agency v. Awadhesh Kumar	(1998) 5 SCC 567	Positive	Cited to support the idea that void decrees can be challenged.
Amba Bai v. Gopal	(2001) 5 SCC 570	Positive	Cited to reinforce the void decree principle.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 CRP NO. 15 OF 2022** **AGAINST THE ORDER/JUDGMENT OS 1390/2012 OF MUNSIFF COURT,** ## **KODUNGALLUR** ## **REVISION PETITIONER/S:** 1 CHANDRAN, AGED 64 YEARS S/O. PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 664. 2 SATHYAN, AGED 61 YEARS S/O. PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 664. 3 GOPAKUMAR, AGED 51 YEARS S/O. PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 664. 4 THANKAM, AGED 71 YEARS D/O. PARAPPIL APPU, LOKAMALESWARAM VILLAGE AND DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 664 5 SUJATHA, AGED 54 YEARS D/O. PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 664. 6 SANTHA, AGED 73 YEARS D/O. PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 664. 7 SAROJA, AGED 70 YEARS D/O. PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 664 CRP Nos.15 & 79 of 2022 -2- BY ADVS. V.M.KRISHNAKUMAR P.R.REENA ## **RESPONDENT/S:** 1 AMRUTHAVALLI, AGED 59 YEARS W/O. PARAPPIL SASI, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 664. 2 NIDHEESH, AGED 39 YEARS S/O. PARAPPIL SASI, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 664 3 NEETHU, AGED 33 YEARS D/O. PARAPPIL SASI, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 664 4 PRATHIBHA V.C. ( SOUGHT TO BE IMPLEADED ) W/O GOPAKUMAR P.A. (DECEASED) PARAPPIL HOUSE, THIRUVALLOOR ROAD, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT. ( SOUGHT TO BE IMPLEADED ) BY ADVS. LIJI.J.VADAKEDOM No Advocate REXY ELIZABETH THOMAS TOM E. JACOB THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.11.2023, ALONG WITH CRP.79/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRP Nos.15 & 79 of 2022 -3- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA,** ## **1945** **CRP NO. 79 OF 2022** **AGAINST THE ORDER OS 1390/2012 OF MUNSIFF COURT,** ## **KODUNGALLUR** ## **REVISION PETITIONER/S:** 1 CHANDRAN AGED 64 YEARS S/O PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680664. 2 SATHYAN AGED 61 YEARS S/O PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680664. 3 GOPAKUMAR AGED 51 YEARS S/O PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680664. 4 THANKAM AGED 71 YEARS D/O PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680664. 5 SUJATHA AGED 54 YEARS D/O PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680664. 6 SANTHA AGED 73 YEARS D/O PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, CRP Nos.15 & 79 of 2022 -4- PIN-680664. 7 SAROJA AGED 70 YEARS D/O PARAPPIL APPU, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680664. BY ADVS. V.M.KRISHNAKUMAR P.R.REENA ## **RESPONDENT/S:** 1 AMRUTHAVALLI AGED 59 YEARS W/O PARAPPIL SASI, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN680664. 2 NIDHEESH AGED 39 YEARS S/O PARAPPIL SASI, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN680664. 3 NEETHU AGED 33 YEARS D/O PARAPPIL SASI, LOKAMALESWARAM VILLAGE DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN680664. BY ADVS. P.SAJEEV LIJI.J.VADAKEDOM REXY ELIZABETH THOMAS TOM E. JACOB ## **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION** **ON 15.11.2023, ALONG WITH CRP.15/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRP Nos.15 & 79 of 2022 -5- ## **ORDER** Dated this the 15[th] day of November, 2023 Revision petitioners are the plaintiffs in O.S.No.1390 of 2012 on the files of the Munsiff Court, Kodungallur. The suit is one filed for partition. Respondents are the legal heirs of the first defendant in the suit. The first defendant died on 10.03.2013 and the preliminary decree for partition was passed on 18.03.2013. Much later, the respondents filed an application for setting aside the preliminary decree after condoning the delay of 2171 days. The court below having allowed the applications, these civil revision petitions are filed. 2. Learned Counsel for the revision petitioners have made the following submissions; After the preliminary decree was passed, the final decree application numbered as 1044 of 2013 was filed by the revision petitioners. Therein, CRP Nos.15 & 79 of 2022 -6- an Advocate Commissioner was appointed to survey and demarcate the properties. The Advocate Commissioner reported that the survey numbers were not tallying and thereupon, the revision petitioners filed interlocutory application for correcting the survey numbers. As the court below dismissed the I.A, OP(C) No.1268 of 2015 was filed before this Court and the same was allowed. It is pointed out that the property was measured in 2018 and as the property could not be partitioned, it was put to auction and purchased by the revision petitioners on 22.01.2019. In all these proceedings, the respondents were parties, but chose to keep quiet regarding the preliminary decree being passed against a dead person. Moreover, the respondents had filed AS No.55 of 2019 challenging the preliminary decree. As a matter of fact and after being party to all these proceedings, respondents filed I.A.No.699 of 2019 for setting aside the ex parte decree and IA CRP Nos.15 & 79 of 2022 -7- No.700 of 2019 for condonation of delay of 2171 days in filing the application, for setting aside the ex parte decree. Hence the court below was not justified in allowing the application, that too, when the only explanation is that the Counsel had failed to take timely steps. Learned Counsel relied on the decision of the Supreme Court in _**B.Madhuri Goud v. B.Damodar Reddy**_ _**[(2012) 12 SCC 693]**_ to contend that the court should not easily accept an explanation blaming the Counsel for the delay. 3. Learned Counsel for the respondents submitted that, insofar as the preliminary decree is passed against a dead person, the decree is a nullity and hence inexecutable. Therefore, the delay in filing application to set aside the decree is immaterial. In support of this proposition, reliance is placed on the Apex Court decision in _**Gurnam Singh (d) thr. Lrs. and Others v. Gurbachan Kaur (d) by Lrs. and Others [(2017)**_ CRP Nos.15 & 79 of 2022 -8- _**13 SCC 414]**_ . It is further contended that the plaintiffs and the first defendant are close relatives and in spite of being aware of the first defendant's death, the fact was concealed and the preliminary decree obtained. According to the learned Counsel, this fraud committed by the plaintiff is sufficient reason for setting aside the ex parte decree. Although it is true that the application for setting aside the ex parte decree was filed with a delay of 2171 days, in spite of being aware of the preliminary decree and even after having filed appeal against the decree, the decree being against a dead person, the court below had no alternative but to set aside the decree when this fact was brought to its notice. The legal position is well laid down in _**Gurnam Singh** (supra)_ , which reads as under; _“21. It is a fundamental principle of law laid down by this Court in Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340] that a_ CRP Nos.15 & 79 of 2022 -9- _decree passed by the court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decreeholder. The reason is that the defect of this nature affects the very authority of the court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a court for or against a dead person is a “nullity” (see N. Jayaram Reddy v. LAO [N. Jayaram Reddy v. LAO, (1979) 3 SCC 578] , Ashok Transport Agency v. Awadhesh Kumar [Ashok Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567] and Amba Bai v. Gopal [Amba Bai v. Gopal, (2001) 5 SCC 570] ).”_ The legal position being that a void decree can be questioned at any stage, the impugned orders warrants no interference. The civil revision petitions are hence dismissed. **==> picture [144 x 11] intentionally omitted <==** ## **V.G.ARUN JUDGE** Scl/