Jafar Siddique v. Suhara C. and Others

_**OP(C).528/20**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943** **OP(C) NO. 528 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OS 430/2009 OF III ADDITIONAL SUB COURT, KOZHIKODE, KOZHIKODE** ## **PETITIONER/S:** JAFAR SADIQUE AGED 60 YEARS S/O.SEETHI, SWATHI HOUSE, POST FEROKE COLLEGE, KARINKALLAI AMSOM DESOM, KOZHIKODE TALUK, PIN673632. BY ADVS. M.R.MINI SRI.VINOD RAVINDRANATH SMT.MEENA.A. SRI.K.C.KIRAN SRI.M.DEVESH SRI.ASHWIN SATHYANATH SRI.ROHIT NANDAKUMAR ## **RESPONDENT/S:** 1 SUHARA C. AGED 65 YEARS D/O.C.SEETHI, 5/9766A, CHERAYAKKAT HOUSE, KACHERI AMSOM, DESOM, KOZHIKODE TALUK, PIN-673006. 2 MARIYAM, AGED 59 YEARS D/O.C.SEETHI, 5/976A, CHEROOTTY NAGAR HOUSE COLONY, PUTHIYARA POST, KASABA AMSOM DESOM, KOZHIKODE, PIN673004. 3 C.SALIKATH, AGED 54 YEARS D/O.C.SEETHI, 5/976A, CHERAYAKKAT HOUSE, KACHERI _**OP(C).528/20**_ 2 AMSOM DESOM, KOZHIKODE TALUK, PIN-673006. 4 C.KAMARUNNISA, AGED 52 YEARS 5/976A, CHERAYAKKAT HOUSE, KACHERI AMSOM DESOM, KOZHIKODE TALUK, PIN-673006. 5 C.HASHIM, AGED 46 YEARS S/O.C.SEETHI, 5/976A, CHERAYAKKAT HOUSE, KACHERI AMSOM DESOM, KOZHIKODE TALUK, PIN-673011. 6 C.JASMIN, AGED 41 YEARS W/O.SHAHUL HAMEED, THADATHIL HOUSE, ABDURAHIMAN NAGAR, AIRPORT ROAD, KOLAPPURAM, MALAPPURAM DISTRICT. 7 P.V.SHAHUL HAMEED AGED 51 YEARS S/O SAYED HUSSAN THANGAL, PUTHENVEETTIL HOUSE, KIZHAKKOTH AMSOM AND DESOM, THAMARASSERI TALUK, PINBY ADVS. R1 TO R4 BY SRI.A.KOMU R1 TO R4 BY SRI.T.B.SIVAPRASAD R5 AND 56 BY SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER ## **OTHER PRESENT:** ADV.T.KRISHNANUNNI SR FOR THE PETNR. THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 13.7.2021, THE COURT ON 04.10.2021 DELIVERED THE FOLLOWING: _**OP(C).528/20**_ 3 ## **V.G.ARUN, J.** ## **----------------------------------------------OP(C).No. 528 of 2020 ----------------------------------------------Dated this the 4[th] day of October, 2021** ## **JUDGMENT** The petitioner is aggrieved by Exhibit P5 order, dismissing his application for reopening the preliminary decree in O.S.No.430 of 2009 of the Subordinate Judge’s Court, Kozhikode. The essential facts, leading to the impugned order are as under; O.S.No.430 of 2009 was filed by the husband and children of one seeking partition and separate possession of plaint A and B scheduled properties. The properties belonged to late P.V.Khadeeja Beevi, wife of the first plaintiff and mother of plaintiff’s 1 to 6. Khadeeja Beevi expired on 28.09.2005 and thereupon the plaintiffs along with Jaffer Siddique (petitioner herein) and Jasmine (the 1[st] defendant), the other children of Khadeeja Beevi, became the coowners of the plaint scheduled properties. The petitioner settled his right in plaint A schedule property in favour of the plaintiffs and 1[st] defendant as per Settlement Deed No.119 of 2007 dated 5.2.2007 of SRO, Kozhikode and the right in plaint B schedule, as per Settlement Deed No.788 of 2009 of SRO, Chalappuram. Later, the 1st defendant transferred her 3/27 share in plaint A schedule _**OP(C).528/20**_ 4 property to the 2nd defendant. As a result, the 2nd defendant became co-owner with respect to the said item. The 1st plaintiff assigned his share in plaint B schedule to plaintiffs 2 to 4 and 6 as per assignment deed No.896 of 2009 of Chalappuram SRO. Thus, the rights over plaint B schedule property got vested with plaintiffs 2 to 4 and 6. Even though the rights over plaint C and D schedule properties had also devolved upon the heirs of Khadeeja Umma, the plaintiffs did not press for partition of those properties, since C Schedule is outstanding in the possession of strangers and D schedule was notified as ecologically fragile land and taken over by the Government. The petitioner having settled his rights over Plaint A and B schedule properties in favour of the plaintiffs and defendants, was not arrayed as a party to the suit. The suit was decreed on 23.9.2011, partitioning plaint A and B schedule properties and rejecting the prayer for partition of C and D schedule properties. 2. The plaintiffs filed final decree application (FDIA.No.1241 of 2018). Pending the application, the 1st plaintiff died on 17.2.2018. Thereupon, the petitioner was impleaded as 3rd respondent in the final decree application in his capacity as the legal representative of the deceased first plaintiff. After his impleadment, petitioner filed I.A.No.1535 of 2019 under Order XX Rule 18 read with Section 151 of CPC, seeking to reopen the _**OP(C).528/20**_ 5 preliminary decree, contending that he is having independent right over the decree schedule property and had been purposefully excluded from the suit. Petitioner denied the averment that he had settled his right in A and B scheduled properties in favour of the plaintiffs and 1[st] defendant and alleged that, at the compulsion of his father he had executed a power of attorney in favour of his brother-in-law and the settlement deeds were executed by misusing the power of attorney. The petitioner also stated that C and D schedule properties were available for partition and the finding to the contrary is unsustainable. Based on the contentions, the petitioner sought reopening of the preliminary decree and to implead him as a supplemental defendant, thereby enabling him to place his independent contentions in the suit, and to pass a supplementary decree after suitable amendments. 3. In their counter affidavit the final decree applicants reiterated their contention that the petitioner had settled his right in plaint A and B schedule properties by executing settlement deeds and submitted that in lieu of the settlement, petitioner was assigned a palatial building in the heart of Calicut city and paid a lump sum amount. It was contended that the court had found that the C and D schedule properties are not available for partition, based on evidence. 4. The court below rejected the contention of the petitioner _**OP(C).528/20**_ 6 that he had independent right over the decree schedule properties, finding that the petitioner had not challenged either the power of attorney executed or the settlement deeds executed on the strength of the power of attorney. The contention that C and D schedule properties were partible was also found to be without substance. It was held that having failed to establish his independent right over the decree schedule properties, the petitioner cannot claim any right beyond that of the 1st plaintiff. 5. Heard Sri.T.Krishnanunni, learned Senior Counsel for the petitioner and Sri.A.Komu, learned counsel for the contesting respondents. 6. Learned Senior Counsel submitted that any number of preliminary decrees can be passed in a suit and there is no restriction against reopening a preliminary decree, once it is proved that one of the sharers was deliberately excluded. According to the Senior Counsel, all that is required is augmentation of shares and the passing of a supplemental preliminary decree. Attention is drawn to Rule 228 of the Civil Rules of Practice and the decisions in _**Purushothaman v Sarojini and others**_ [2011 (4) KHC 407) and _**Kochukunju Stephen v. Ashia Umma**_ [2005 (5) KLT 534] 7. Learned Counsel for the respondent contended that the preliminary decree cannot be challenged at the instance of a _**OP(C).528/20**_ 7 person having no subsisting right in the decree schedule properties, except the fractional right, in his capacity as legal representative of the deceased 1[st] plaintiff. It is submitted that the decisions cited by the learned Senior Counsel were rendered under entirely different facts and circumstances, and the legal position is no longer _res integra_ in view of the decision of the Apex Court in _**Sardar Surjeet Singh v. Juguna Bai and Others**_ [2017 Legal Eagle (SC) 1673]. 8. The contention that the petitioner has independent right over the decree schedule properties and was deliberately kept out of the suit being untenable, is rejected. As rightly held by the court below the remedy of the petitioner is to challenge the power of attorney and the settlement deeds in an appropriately constituted suit. I am unable to accept the contention based on Rule 228 of the Civil Rules of Practice, since the petitioner was not entitled for any share till the death of his father and the requirement of Rule 228 being that, all persons entitled to shares should be joined as parties. Similarly, the trial court having found C and D schedule properties to be not partible, I find no reason to come to a different conclusion, since, other than raising bald allegations in his applicatoin, the petitioner did not let in evidence to support his contention. _**OP(C).528/20**_ 8 9. On the question of finality of a preliminary decree, the Apex Court in _**Venkata Reddy v. Pethi Reddy**_ , [AIR 1963 SC 992] categorically held that the preliminary decree in a partition suit is final as far as the parties are concerned. The contextually relevant portion of the judgment is extracted below; _“A decision is said to be final when, so far as the court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree — the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil_ _**OP(C).528/20**_ 9 _Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree.”_ 10. Later in _**Phoolchand v. Gopal Lal**_ , [(1967) 3 SCR 153] the position was clarified as under; _“7. We are of the opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree_ _**OP(C).528/20**_ 10 _correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that 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. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible and obviously this is so because the High Courts have differed on the question — we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary_ _**OP(C).528/20**_ 11 _decree, particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances of this case it was open to the court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant.”_ 11. In _**Sardar Surjeet Singh**_ (supra), the Apex Court, after elaborate consideration, observed that the dictum in _**Phoolchand**_ (supra) is that a subsequent event can be taken into consideration while working out the preliminary decree into the shape of a final decree. The Apex Court held that the case at hand is _**OP(C).528/20**_ 12 distinguishable since the preliminary decree had attained finality and it was not a case of subsequent event or change of law. Herein also, the petitioner is seeking to reopen the preliminary decree based on the power of attorney and settlement deeds executed prior to the institution of the suit. 12. This Court, in _**Vasudeva Kallurao v. Ramachandra Rao and Another**_ [1977 KLT 414], has held that the question of reopening a preliminary decree does not arise on impleadment of legal representatives, since they are only stepping into the shoes of the deceased. 13. In _**Purushothaman v Sarojini**_ [2011 (4) KHC 407], the petitioner had purchased the share of one of the parties to the suit and approached the court with a prayer to pass a supplementary preliminary decree taking note of the shares acquired by her. The application having been dismissed she filed revision. Following the dictum in _**Phoolchand**_ (supra) this court allowed the revision petition, holding that in a partition suit, the court should decide all disputes that may arise between parties after the preliminary decree, but before passing of the final decree. In _**Kochukunju Stephen**_ (supra) the impleaded legal representatives of the deceased 13th respondent, who had been set _ex parte_ in the suit, contended that as on the date of filing of the suits the 13th respondent had no subsisting interest in the property as he had _**OP(C).528/20**_ 13 transferred his right to the legal representatives and the decree passed without the real owners on party array has no legal effect. The prayer for reopening the preliminary decree was turned down and the final decree passed. In the appeal filed against the final decree, the appellate court found merit in the contention and set aside the final decree and directed the trial court to reopen the preliminary decree. The challenge against the order of remand was repelled by this court, upholding the findings of the appellate court. 14. The facts of the instant case are different. The petitioner was not having any subsisting independent right in the properties as on the date of decree and hence, the preliminary decree cannot be reopened or a supplementary preliminary decree passed at his instance. The position has been clarified by this court in _**Anakkayam Pullyil Jumna-ath Palli v V.P.Abdulla and others**_ [2012 (2) KHC 283] in the following manner; _“So far as the suit for partition is concerned partibility of the property is decided by passing the preliminary decree and once such preliminary decree is passed unless it is set aside in appropriate proceedings the decision taken on the partibility of the property is final. In the final decree proceedings what is to be followed is giving effect to the partition of the property as per the decision of the Court as among the shares by having measurement of such properties, settlement of_ _**OP(C).528/20**_ 14 _accounts, adjustment etc. Of course, after passing of the decree where the death of a party takes place or there is an assignment of the right of one of the parties to another, substitution of the legal representatives as well as assignees, as the case maybe, by way of employment can be permitted, but in such cases, there is no reopening of the preliminary degree, but only protecting the interest of the persons whose rights have already been declared under the decision rendered in the preliminary decree.”_ 15. The petitioner's entitlement is confined to a fraction of the deceased 1[st] plaintiff's right. The court will have to divide the 1[st] plaintiff’s share among his legal representatives, which does not warrant reopening of the preliminary decree and passing of a supplementary preliminary decree. For the reasons aforementioned, the original petition is dismissed. **Sd/-** ## **V.G.ARUN, JUDGE** _vgs_ _**OP(C).528/20**_ 15 ## **APPENDIX OF OP(C) 528/2020** PETITIONER EXHIBITS EXHIBIT P1 - TRUE COPY OF THE PLAINT DATED 25.6.2009 IN O.S.NO.430/2009, ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, KOZHIKODE. EXHIBIT P2 TRUE COPY OF THE JUDGMENT AND DECREE DATED 23.09.2011 PASSED IN O.S.NO.430/2009, ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, KOZHIKODE. - EXHIBIT P3 TRUE COPY OF I.A.1641/2019 IN FD IA 7461/2011 IN O.S.430/2009 DATED 18.09.2019. EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 19.09.2019 FILED IN I.A.1641/2019. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 24.10.2019 IN I.A.1641/2019 IN FD.I.A.7461/2011 IN O.S.430/2009. RESPONDENT EXHIBITS EXHIBIT R5(A) TRUE COPY OF THE JUDGMENT DATED 2.8.2017 IN CIVIL APPEAL NOS.319-320 OF 2009 PASSED BY THE HON'BLE SUPREME COURT. EXHIBIT R5(B) TRUE COPY OF THE COMMON JUDGMENT DATED 14.8.2019 PASSED BY THIS HON'BLE COURT IN THE ABOVE TWO OP NOS.822 OF 2018 AND 871 OF 2018.