Jayalakshmi v. Padminidevi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 7TH DAY OF AUGUST 2017/16TH SRAVANA, 1939** ## **OP(C).No. 2422 of 2016 (O) ---------------------------** ## **EP NO.369/2013 IN OS NO.655/1991 OF MUNSIFF COURT, THRISSUR** **PETITIONER(S):** **-------------** **JAYALAKSHMI, AGED 47 W/O.NARAYANAN, KONGOTH HOUSE, VILVATTOM VILLAGE, DESOM, THRISSUR TALUK.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** **RESPONDENT(S):** **--------------** **PADMINIDEVI W/O.POTANAT PADMANABHAN NAIR, THALIKATUSSERY, OLLUR, THRISSUR 680 001.** **R1 BY ADV. SRI.P.VIJAYA BHANU (SR.) R1 BY ADV. SRI.AJEESH K.SASI R1 BY ADV. SMT.MITHA SUDHINDRAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 2422 of 2016 (O)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT.P1 A TRUE COPY OF THE JUDGMENT IN SA NO.1022 OF 01 DATED 11/8/2010 ON THE FILE OF THIS HON'BLE COURT** **EXT.P2 A TRUE COPY OF THE JUDGMENT IN OS NO.655/91 DATED 17/11/95 ON THE FILE OF THE SUB COURT, THRISSUR** **EXT.P3 A TRUE COPY OF THE ORDER IN FINAL DECREE APPLICATION IA NO.3121/2001 IN OS NO.655/91 DATED 6/11/2012 ON THE FILE OF THE PRL. SUB COURT, THRISSUR** **EXT.P4 A TRUE COPY OF THE JUDGMENT IN RSA NO.754/2015 DATED ON THE FILE OF THIS HON'BLE COURT** **EXT.P5 A TRUE COPY OF THE EP NO.369/2016 IN OS NO.655/91 ON THE FILE OF THE SUB COURT, THRISSUR** **EXT.P6 A TRUE COPY OF THE EA NO.894/2015 IN EP NO.369/2013 IN OS NO.655/91 ON THE FILE OF THE ADDL. SUB COURT, THRISSUR DATED 13/7/2015** **EXT.P7 A TRUE COPY OF THE OBJECTIONS TO EXT.P6 DATED 29/7/2015** **EXT.P8 A TRUE COPY OF THE EA NO.684/2016 IN EP NO.369/2013 IN OS NO.655/91 ON THE FILE OF THE ADDL. SUB COURT, THRISSUR DATED 13/7/2015** **EXT.P9 A TRUE COPY OF THE OBJECTIONS TO EXT.P8 DATED 3/6/2016** **EXT.P10 A TRUE COPY OF THE OBJECTION IN THE EXECUTION PETITION FILED BY THE PETITIONER DATED 22/8/2016** **EXT.P11 A TRUE COPY OF THE COMMON ORDER PASSED IN EA NOS 894/2015 AND IN EA NO.684/2016 IN EP NO.369/2013 IN OS NO.655/91 ON THE FILE OF THE ADDL. SUB COURT, THRISSUR DATED 8/9/2016** **RESPONDENT(S)' EXHIBITS: N I L** **-----------------------** **//TRUE COPY//** **PA TO JUDGE** ## **A. HARIPRASAD, J. ------------------------------O.P.(C).No.2422 of 2016 ---------------------------------------------Dated this the 7[th] day of August, 2017** ## **JUDGMENT** Challenging Ext.P11 order passed by the II[nd] Additional Sub Judge, Thrissur in E.A.No.894 of 2015 and E.A.No.684 of 2016 in E.P.No.369 of 2013 in O.S.No.655 of 1991, the 2[nd] defendant has come up before this Court. The decree holder/respondent before the court below is the respondent herein. Parties are sisters. They, along with their father Madhavan Nair and husband of the petitioner, were defendants in a suit for partition. The plaintiffs in the suit contended that Madhavan Nair had only 1/8[th] right over the property. Madhavan Nair had set up ownership in respect of the entire property. To establish that contention he produced Ext.B1 settlement deed executed by him in favour of the petitioner and respondent. According to him, by virtue of that document, he had settled his entire rights over the property in favour of his two daughters, namely, the petitioner and the respondent. Considering the contentions raised and established by the parties, the trial court, as per Ext.P2 judgment, passed a **O.P.(C).No.2422/2016** **2** preliminary decree. In that judgment, the trial court took note of the fact that the property had been settled by the 1[st] defendant (Madhavan Nair) in favour of defendants 2 and 4 (petitioner and respondent) reserving a life interest in favour of him. The trial court considered the effect of the document and ultimately it found that Madhavan Nair had only 1/8 right over the property. A preliminary decree was passed. Ext.P2 judgment was challenged before the lower appellate court and later, in a second appeal before this Court. Ext.P1 is the judgment passed by this Court in S.A.No.1022 of 2001. A learned single Judge of this Court observed thus: The contention that the suit for partition, without setting aside Ext.A16 settlement deed, is without any legal basis. That is a document, said to have been written by the first defendant in favour of the second and fourth defendants. The plaintiffs are neither parties to the said deed nor are they bound by the terms of the document. In the said document, the first defendant styles himself as the only heir of Lakshmikutty Amma and deals with the property of Lakshmikutty Amma as it exclusively belongs to him. The plaintiffs can certainly ignore the same. It could then be seen that none of the grounds **O.P.(C).No.2422/2016** **3** raised in the memorandum of appeal is sustainable in law. The courts below have considered the various aspects in detail and have come to the conclusion that the first plaintiff is the daughter of Lakshmikutty Amma and that the plaintiffs are entitled to 7/8 shares. It has not been shown that the findings are either perverse or unwarranted by the evidence on record. There is nothing to show that the relevant aspects have been omitted to be taken note of by the courts below. The result is that this appeal is without merits and it liable to be dismissed. I do so. There will be no order as to costs. 2. Pending the first appeal, the respondent put forward an exclusive claim over the property belonged to Madhavan Nair by contending that he had executed a Will in her favour bequeathing all his interests over the property. This contention was raised for the first time while the matter was pending in A.S.No.136 of 1997 before the District Court, Thrissur. I.A.No.2277 of 1998 was filed in the appeal claiming a right by virtue of the Will executed by Madhavan Nair. The order passed by the lower appellate court would show that the executing witnesses and the scribe were examined to prove the Will. In this proceedings, the petitioner had participated and contested. **O.P.(C).No.2422/2016** **4** Ultimately, the lower appellate court found that the Will propounded by the respondent was properly proved and it was established that deceased Madhavan Nair, in a sound disposing state of mind had executed the Will. However, the question whether Madhavan Nair, after executing the settlement deed in favour of the petitioner and respondent, had any right to create a bequest in respect of the property was not considered. 3. Interestingly, genuineness of the Will or in other words legal effect of the Will was not raised in the second appeal. Ext.P1 judgment does not show any such contention raised by the parties. 4. In the meantime, the respondent purchased rights from all the other sharers so as to accumulate 7/8 share over the entire property. The petitioner has only half of Madhavan Nair's 1/8[th] share, i.e., 1/16 share. Admittedly the petitioner is residing in a house in the property. 5. When the respondent sought for delivery of the property, the petitioner opposed delivery contending that she is a co-owner and the petitioner cannot take delivery of the property ejecting her from the property. Repelling the **O.P.(C).No.2422/2016** **5** contentions raised by the petitioner, the court below ordered delivery of the property to the petitioner. The question to be resolved in appropriate proceedings is whether deceased Madhavan Nair had any disposable right over his share in the wake of the settlement deed executed prior to the Will propounded by the respondent. That question was not decided in any stage of this litigation. Therefore, I find that the court below was not justified in delivering actual physical possession to the respondent. 6. Another question that arises for consideration is whether Section 47 CPC could be applied to resolve the issue. Section 47 CPC reads thus: Questions to be determined by the Court executing decreed (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by **O.P.(C).No.2422/2016** **6** the Court. 7. Relying on the text book of Mulla on the Code of Civil Procedure, 1908, learned counsel for the petitioner contended that a dispute between joint decree holders will be a question arising between the parties, if the Judgment Debtor is interested in such a question, but not otherwise. To butter this contention, a decision reported in **Mohammad Akhtar Ali v. Badrudin [AIR 1973 Patna 187]** is relied on. Viewing from that angle, this court is of the opinion that the dispute now raised cannot be resolved by resorting to Section 47 CPC. Considering the facts and circumstances, following directions are issued: The court below shall deliver the property to the respondent subject to the right of the petitioner, especially when she is residing in the house. The question whether Madhavan Nair had the right to create a bequest, as now claimed by the respondent will be decided in an appropriate proceedings. The Original Petition is disposed accordingly. Sd/- JV **A. HARIPRASAD JUDGE**