FAO (RO).No.162 OF 2015

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941** ## **FAO (RO).No.162 OF 2015** **AGAINST THE JUDGMENT IN AS 57/2014 DATED 27-06-2015 OF SUB COURT, THALASSERY** **AGAINST THE JUDGMENT IN OS 412/1996 DATED 08-06-2010 OF MUNSIFF COURT, THALASSERY** **- APPELLANTS/RESPONDENTS 1 TO 3 IN AS.57/2014 SUB JUDGE, THALASSERY** **PETITIONERS 1 TO 3 IN IA 896/2008 - SUB JUDGE, THALASSERY/DEFENDANTS 2, 8 & 9 IN OS.412/1996 - MUNSIFF, THALASSERY::** - **1 O.K.PREMAVALLY AGED 60 YEARS** **D/O. LATE SRI.O.N.BALARAM, HOUSEWIFE, 'SRINAGAR', B.R.PURAM, PODAMEDU, COIMBATORE, PRESENTLY RESIDING AT SATPRADHA, OPP. KOYILI HOSPITAL, TALAP, KANNUR.** **2 SUGANDA DEEPA @ DEEPA AGED 31 YEARS** **D/O. SUGATHAN, ENGINEER, 'SRINAGAR', B.R.PURAM, PODAMEDU, COIMBATORE, PRESENTLY RESIDING AT SATPRADHA, OPP. KOYILI HOSPITAL, TALAP, KANNUR, REPRESENTED BY MOTHER AS AGENT & POWER OF ATTORNEY O.K.PREMAVALLY,D/O LATE SRI.O.N.BALARAM, AGED 60 YEARS, HOUSEWIFE, 'SRINAGAR', B.R.PURAM, PODAMEDU, COIMBATORE, PRESENTLY RESIDING AT SATPRADHA, OPP.KOYILI HOSPITAL, TALAP, KANNUR.** **3 P.M.SUGATHAN AGED 73 YEARS** **S/O. P.M.BAPPUTTY, ENGINEER, KALLAYI AMSOM, PUNNOL DESOM, PRESENTLY RESIDING AT SATPRADHA, OPP.KOYILI HOSPITAL, TALAP, KANNUR.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **- RESPONDENTS/APPELLANTS & RESPONDENTS 4 TO 10 IN AS 57/2014 SUB JUDGE, THALASSERY/RESPONDENTS 3,5,7, PETITIONERS 4,5 & RESPONDENTS 1,2,4,6 & 8 IN - IA 896/2008 SUB JUDGE, THALASSERY/D3, D5, D11, D12, PLAINTIFF, D1, D4, D6& D10 IN OS.412/1996 - MUNSIFF, THALASSERY:** **1 O.K.KANAKARAJ AGED 59 YEARS** **S/O. LAE SRI.O.N.BALARAM, RESIDING NEAR CHALAD TEMPLE, KANNUR, PRESENTLY RESIDING AT LEELALAYAM, CHOVVA, KANNUR-670 006.** **2 O.K.PREMARAJ AGED 51 YEARS** **FAO (RO).No.162 OF 2015** **2** **S/O. LATE SRI. O.N.BALARM, MANAGER, ROCK WOOD ESTATE, MARCARA, KODAGU, KARNATAKA STATE, PRESENTLY RESIDING AT 56, CHANDRAPPA BUILDING, BANGALORE-560 091.** - **3 O.K.DINARAJ AGED 50 YEARS** - **S/O. LATE SRI. O.N.BALARAM, ADVOCATE, LEELALAYAM, CHOVVA, KANNUR-670 101.** - **4 PUTHUKKUDY VADAVATHI CHANDRAN AGED 59 YEARS** - **S/O. KRISHNAN, DOCTOR, NEAR TELI HOSPITAL, THALASSERY-670 101.** - **5 PARAKANDIYIL SUJATHA AGED 51 YEARS** - **W/O. DR.P.V.CHANDRAN, RESIDING NEAR TELI HOSPITAL, THALASSERY, PIN-670 101.** - **6 SUDEEP @ C.K.VIVEK AGED 31 YEARS** - **S/O.;VIJAYARAGHAVAN, HOUSE NO.18, CHOVVA HOUSING COMPLEX, KANNUR-670 001.** - **7 NIVEDITHA BALRAM, AGED 20 YEARS W/O. C.N.BALRAM, LEELALAYAM, KANNUR-670 001.** - **8 O.K.KANAKARANI AGED 47 YEARS** - **D/O. LATE O.N.BALRAM, HOUSE NO.18, CHOVVA SHOPPING COMPLEX, KANNUR, PRESENTLY AT LEELALAYAM, CHOVVA, KANNUR-670 001.** - **9 O.K.VINAYARAJ AGED 55 YEARS** - **D/O. LATE O.N.BALRAM, PROPRIETOR,KANNAN AUTOMOBILES, LEELALAYAM, KANNUR-670 001.** - **10 P.M.DAMODARAN AGED 51 YEARS** - **S/O. BAPPUTTY, PURAKANDIYIL, KALLAYI AMSOM, PUNNOL DESOM, THALASSERY-670 101.** **R1-3 BY ADV. SRI.V.R.KESAVA KAIMAL** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 16.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **FAO (RO).No.162 OF 2015** **3** ## **J U D G M E N T** This appeal has been filed by defendants 2, 8 and 9 in O.S.No.412/1996 on the files of the Munsiff Court, Thalassery. 2. The judgment impugned in this appeal is that of the lower Appellate Court, namely, the Subordinate Judge, Thalassery, in A.S.No.57/2014; which arose against an order issued by the Munisff Court, Thalassery at the instance of defendants 2, 8, 9, 10 and 11 in the suit, issuing a supplementary preliminary decree in their favour, after declaring their share in the Suit. 3. The appellants say that the Original Suit was instituted by a certain Sri.Vivek and the Trial Court issued a preliminary decree declaring that the plaintiff is entitled to 1/10 share over the plaint schedule properties, which approximately is an extent of 111 cents, but that the shares of the defendants were not specifically allotted, solely because they did not pay the Court Fee for it, though the Court declared that the plaint schedule properties are fully partible. They say that it is, therefore, obvious that the balance 9/10 shares in the plaint schedule properties are available to be partitioned among the defendants **FAO (RO).No.162 OF 2015** **4** and that they were thus entitled to move an application before the Trial Court for a supplementary decree. The appellants rely on the judgment of this Court in **Perumal Vadyar and others v. Devi and others** [ **1991 (1) KLJ 65]** in substantiation of their plea that an application for a supplementary decree is maintainable in such circumstances and contend that the impugned judgment, to the extent to which it has set aside the supplementary decree passed by the Trial Court and in having remanded the matter for fresh consideration, is illegal and untenable. They therefore, pray that the judgment of the Lower Appellate Court be set aside and the supplementary decree passed by the Trial Court be restored. 4 **.** Compendiously speaking, the Suit was filed by the plaintiff, Sri.C.K.Vivek, seeking partition of the plaint schedule properties and allotment of 1/10 share therein in his favour. The suit was allowed by the Trial Court and Ext.A1 preliminary decree had been issued. Going by the said decree, the Trial Court has recorded that the plaintiff is entitled to get 1/10 share of the plaint schedule properties but has not allotted individual shares to the defendants, because they did not claim it and did not pay **FAO (RO).No.162 OF 2015** **5** Court Fee for the same. It is in such scenario that defendants 2, 8, 9, 10 and 11 approached the Court below for issuance of a supplementary preliminary decree, asserting that two among them, namely defendants 2 and 8 are original sharers; while the other three, namely, defendants 9, 10 and 11, are assignees of certain extent of the plaint schedule properties executed in their favour by defendant No.1, who did so on the basis of Ext.B1 Power of Attorney executed by all other defendants. The afore mentioned defendants thus prayed that the Court below issue a supplementary preliminary decree, allotting shares to them on the strength of their status are sharers and as assignees under the three sale documents relied upon by defendants 9, 10 and 11, namely Exts.B2, B5 and B4. 5. The Court below allowed the afore application, finding that the assignments made in favour of defendants 9, 10 and 11 are valid and without contest; and, consequently, a supplementary preliminary decree was issued, allotting 0.0875/10 share in favour of defendant No.2, 1/10 share in favour of defendant No.8, 2.1/10 shares in favour of defendant Nos.9 and 12 each and 3.1/10 shares to defendant No.11, thus **FAO (RO).No.162 OF 2015** **6** leaving the residuary of 0.7/10 shares to be divided among the other sharers. 6. The supplementary preliminary decree, issued by the Trial Court, was challenged by defendants 3, 5 and 7 before the Sub Court, Thalassery, by filing A.S.No.57/2014, contending that the Trial Court has erred in having accepted Exts.B2, B4 and B5 documents, as per which, the lion's share of the plaint schedule property was shown to have been assigned in favour of defendants 9,10 and 11. They further asserted that they had raised serious objections before the Court below regarding the allotment as claimed by defendants 2,8,9,10 and 11, but that the said Court did not consider the same at all and instead, went on to allow the application as prayed for. They, therefore, prayed that the supplementary preliminary decree be set aside. 7. I notice that the Lower Appellate Court considered the matter in great detail and allowed the appeal, setting aside the supplementary preliminary decree passed by the Munsiff's Court, Thalassery, but then remanded the matter for fresh consideration of the application of the defendants 2,8,9,10 and 11, after affording ample opportunity to both sides. It is this order which is **FAO (RO).No.162 OF 2015** **7** challenged before this Court. 8 **.** I have heard Sri.B.Krishnan, learned counsel appearing for the appellants and V.R.K, Kaimal, learned counsel appearing for the respondents 1 to 3. 9. Sri.B.Krishnan, learned counsel for the appellants, started his submissions by asserting that the impugned judgment of the Lower Appellate Court is in error, since it could not have set aside the supplementary preliminary decree issued by the Trial Court. He then submitted that since the only reason the original preliminary decree did not allot shares to his clients was because they had not remitted the requisite court fee, the Trial Court was fully justified in issuing a supplementary preliminary decree. He further submitted that since defendants 9,10 and 11 were claiming their shares on the strength of exhibits B2, B4 and B5 assignment deeds executed by all the other sharers, and which have been never challenged by them at any time, they are entitled to seek a supplementary preliminary decree for their shares to be declared. He asserts that this can be the only way going by the law declared in **Perumal Vadyar** (supra). He thus prays that this appeal be allowed. **FAO (RO).No.162 OF 2015** **8** 10. In response, Sri.V.R.K.Kaimal, learned counsel appearing for respondents 1 to 3, vehemently called into question the validity of the impugned supplementary preliminary decree contending that it could not have been issued by the Trial Court when there were no change of circumstances and therefore, that the Lower Appellate Court ought to have set aside the same without ordering a remand. He further submitted that the Trial Court has erred in assuming that Exhibits B2, B4 and B5 assignment deeds to be valid, particularly when it had, in the original preliminary decree, found the same to be suspcious and not binding on the plaintiff. He thus submitted that the supplementary preliminary decree is untenable in law, especially because it assumes the assignments in favour of defendants 9 to 11 to be valid, when his clients had raised strong objections to the same and had contended that they are not binding on them either. He thus prays that this appeal be dismissed adding that the order of remand by the Lower Appellate Court is also unnecessary. 11. When I consider the afore submissions and examine the pleadings and materials available on record, it is indubitable **FAO (RO).No.162 OF 2015** **9** that Ext.A1 preliminary decree had been issued by the Trial Court finding that Exts.B2, B4 and B5 assignment deeds executed by defendant No.1 in favour of defendants 9, 10 and 11 are not binding on the plaintiff, since they were executed by D1 on the strength of Ext.B4 Power of Attorney executed, inter alia, by his mother while he was a minor. The Trial Court declared that these assignments are not binding on the plaintiff and therefore, that he is entitled to 1/10 share in the plaint schedule property, but without declaring the shares of any of the other defendants, because they had not sought for it. Obviously, therefore, the question of validity of Ext.B2, B4 and B5 qua the other defendants, apart from the touchstone of the claims of the plaintiff, was never considered by the Trial Court, since it was not necessary at that point of time - with only the plaintiff having alleged that they are not binding on him - without any such contention being raised by the defendants. 12. That said, the Trial Court, while issuing supplementary preliminary decree, appears to have accepted Exts.B2, B4 and B5 to be valid as against the other defendants and to have issued the decree allotting shares to defendants 2,8,9,10 and 11 in the **FAO (RO).No.162 OF 2015** **10** aforementioned manner. 13. It is here that I find a crucial problem. 14. This is that, nowhere in Ext.A1 is it declared that Exts.B2,B4 and B5 are binding on the other defendants, though it may be true that none of them have challenged the same until now. However, when a supplementary preliminary decree was sought for by defendants 2,8,9,10 and 11, primarily based on Exts.B2, B4 and B5, the Trial Court certainly had to consider the validity of the same, before it could have issued the decree. However, in the case at hand, what has been done by the Trial Court is to assume that these documents are valid and that they are binding on all the other defendants and then issued a decree granting shares as already recorded above. This, am afraid, cannot find the favour of this Court because, even if I am to accept the contentions of Sri.B.Krishnan, learned counsel for the appellants, that these documents are not capable of being assailed by any of the defendants at this point of time on account of the principles of limitation, these issues certainly had to be considered by the Trial Court, rather than having automatically accepted the documents in question to be valid and binding on all **FAO (RO).No.162 OF 2015** **11** parties. 15. When I say as afore, I may not be misunderstood that I am declaring that Exts.B2,B4 and B5 are valid or otherwise, but only that the Trial Court ought to have considered the objections of the defendants against these documents before a supplementary preliminary decree had been issued. This is more so because, if these documents are accepted, then the other defendants would hardly get any property, even though their shares have been declared as being 1/10 each under Ext.A1 preliminary decree. 16. That being said, as regards the contentions of Sri.V.R.Kesava Kaimal that a supplementary preliminary decree could not have been issued by the Trial Court is concerned in the absence of new developments or intervening factors are concerned, I am certain that the law has been now well settled, without requirement of restatement, that even in the case of defendants, additional supplementary preliminary decree can be issued, provided the earlier preliminary decree determines their shares and when no further enquiry is necessary regarding any of the disputes among them. It is also now settled that a **FAO (RO).No.162 OF 2015** **12** supplementary preliminary decree can be claimed by defendants with respect to remaining shares, either jointly or severally, and that the purpose of enabling the defendants to get such a decree is to see that all the reliefs which can be worked out on the suit itself are to be granted without the parties being given to a separate suit. [See for support paragraph 15 in **Perumal Vaidyar** (supra)]. I, therefore, repel these contentions of Sri.Kaimal as being without merits. 17. In such circumstances, I am of the view that this Court will be justified in setting aside the judgment of the appellate Court impugned in this Appeal, as also the supplementary preliminary decree dated 08.06.2010, issued by the Trial Court; with a consequential direction to the Trial Court to reconsider I.A.No.896/2008 in O.S.No.412/96 filed by defendants 2,8,9,10 and 11 afresh and without being, in any manner, trammelled by any of the observations or findings in its earlier order or in the judgment impugned herein. 18. Since the suit is of the year 1996, I direct the Trial Court to dispose of the application for supplementary preliminary decree as directed above, as expeditiously as is **FAO (RO).No.162 OF 2015** **13** possible, but not later than the date on which the Civil Courts close for the Onam Holidays, 2020. The parties will, for such purpose, appear before the Trail Court on 14.02.2020. This appeal will thus stand disposed of, however, without any order being made as regards the costs; and consequently the parties will suffer their respective costs. **SD/-** **DEVAN RAMACHANDRAN** **JUDGE** rp/RR