Kariyadan Moidu v. Kariyadan Kunhanhu and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937** **RSA.No. 493 of 2010 (A)** **-----------------------AGAINST THE JUDGMENT & DECREE IN AS 15/2005 OF ADDL. DISTRICT COURT, THALASSERY DATED 07-12-2009 AGAINST THE JUDGMENT & DECREEIN IA NO. 1485/1997 IN OS 7/1995 OF PRL.SUB COURT, THALASSERY DATED 20/03/2004** **----------------** ## **APPELLANT/APPELLANT/RESPONDENT NO.1 IN FDIA/DEFENDANT NO. 1 :** **----------------------------------------------------------------------------------------------------------** **KARIYADAN MOIDU, S/O.POCKU, AGED 61 YEARS, AGRICULTURIST, KODIYERI AMSOM AZHIKKAL DESOM P.O.NEW MAHE, THALASSERY TALUK, KANNUR DISTRICT.** ## **BY ADV. SRI.R.SURENDRAN** ## **RESPONDENTS/RESPONDENTS/PETITIONER & R3 TO 7/PLAINTIFF & D3 :** **----------------------------------------------------------------------------------------------------------** ## **1. KARIYADAN KUNHANHU,** - **W/O.USMAN HAJI, AGED 48 YEARS, KARIYADAN PUNATHIL HOUSE** **P.O.KURICHIYIL, THALASSERY TALUK, KANNUR DISTRICT.** ## **2. KARIYADAN KADEEJA,** **W/O.POKKU, AGED 56 YEARS, KARIYADAN PUNATHIL HOUSE, KODIYERI AMSOM AZHIKKAL DESOM, P.O.KURICHIYIL, THALASSERY TALUK KANNUR DISTRICT.** ## ***3. A.P.ASMA,** **W/O.KADERKUTTY, AGED 59 YEARS, 'ASHIYANA', SAIDARPALLY, THALASSERY TALUK KANNUR DISTRICT. (*DIED, LR'S RECORDED)** ## **4. A.P. SHARMILI,** **D/O.KADERKUTTY, AGED 39 YEARS, 'ASHIYANA', SAIDARPALLY, THALASSERY TALUK KANNUR DISTRICT.** **...2/-** ## **RSA.No. 493 of 2010 ( ) -2-** ## **5. A.P.SUHANA,** **D/O.KADERKUTTY, AGED 34 YEARS, 'ASHIYANA', SAIDARPALLY, THALASSERY TALUK KANNUR DISTRICT.** ## **6. A.P.SAFREENA,** **D/O.KADERKUTTY, AGED 30 YEARS, 'ASHIYANA', SAIDARPALLY, THALASSERY TALUK KANNUR DISTRICT.** ***THE 3RD RESPONDENT IS NO MORE AND RESPONDENTS 4 TO 6 ARE RECORDED AS HER LHRS AS PER THE ORDER DTD. 12/10/2011 IN IA NO. 197/2011.** **R1 &2 BY ADVS. SRI.C.KHALID SRI.T.P.SAJID** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15-02-2016, THE COURT ON 25-02-2016 DELIVERED THE FOLLOWING:** **Mn** ## **P.B.SURESH KUMAR, J.** ## **= = = = = = = = = = = = =** ## **R.S.A.No.493 of 2010.** ## **= = = = = = = = = = = = =** Dated this the 25[th] day of February, 2016. **J U D G M E N T** The final decree in a suit for partition is under challenge in this second appeal. The first defendant in the suit is the appellant. 2. As per the preliminary decree, the trial court declared that the plaintiff is entitled to 34/192 shares in the suit property. The trial court also declared in the preliminary decree that defendants 1 and 2 are entitled to 62/192 shares each in the suit property. The preliminary decree has become final. Thereafter, the plaintiff has filed an application for passing of the final decree. The Advocate Commissioner appointed in the final decree proceedings effected partition of the suit property in accordance with the preliminary decree. Pending the final decree proceedings, **RSA.No.493/2010.** 2 the second defendant who is the brother of the first defendant died. On his death, the plaintiff impleaded his wife and children as his legal representatives in the final decree application. Respondents 4 to 7 in the final decree application are the wife and children of the deceased second defendant. Thereupon, the trial court passed the final decree directing, among others, to allot the share of property earmarked for the second defendant to defendants 4 to 7. The first defendant has challenged the final decree in appeal on two grounds, namely, that the final decree court should not have rejected his claim for reservation raised by him and that the allotment of shares is not equitable. The appellate court rejected the contentions raised by the first defendant and confirmed the final decree. The first defendant who is aggrieved by the concurrent decisions against him has thus come up in this second appeal. 3. Heard the learned counsel for the appellant **RSA.No.493/2010.** 3 as also the learned counsel for respondents 1 to 3. There is no appearance for the persons impleaded as the legal representatives of the deceased second defendant. 4. The learned counsel for the appellant contended that the first defendant is one of the legal representatives of the deceased second defendant and as such, on his death, his share over the suit property devolved on the first defendant also. As such, according to the learned counsel, the final decree court should have altered the shares of parties accordingly and allotments should have been made in accordance with the altered shares. The learned counsel relied on the decision of the Apex Court in **Koteswara Rao v. Bhaskara Rao** (2009(2) KLT 670(SC) and the decision of this Court in **Purushothaman v. Sarojini** (2011 (4) KHC 407), in support of his contentions. 5. I do not find any merit in the contentions raised by the learned counsel for the appellant. The **RSA.No.493/2010.** 4 impugned decisions do not indicate that such a contention was raised by the first defendant before the courts below. True, as held by the Apex Court in **Koteswara Rao v. Bhaskara Rao** (supra), the court has jurisdiction to amend the shares of the parties in a suit for partition suitably in the final decree proceedings, if a sharer dies after the preliminary decree and if the share of the deceased sharer devolves on the remaining parties to the suit or even to third parties. But, in so far the first defendant has not made appropriate request for alteration of the sharers of the parties and consequent allotment in the final decree proceedings, such a request cannot be considered in a second appeal, for, the scope of the second appeal is limited to the extent of examining the correctness of the decisions of the courts below. The appellant is also not entitled to any relief in the second appeal on the above ground as acceptance of such an argument would result in _de novo_ consideration of the final decree application and _de novo_ 5 ## **RSA.No.493/2010.** allotment of properties for no fault of the plaintiff and others. In **Purushothaman v. Sarojini** (supra) this Court held that in a suit for partition, the court has to decide even disputes arising after the preliminary decree. The said case was a case where a person who had acquired the undivided right of the sharer over the suit property after the preliminary decree and applied for passing of a supplementary preliminary decree in his favour. The said application was dismissed by the trial court holding that since the assignment of the undivided right in favour of the petitioner was denied by the sharer, such disputes cannot be decided in the suit. The said decision of the trial court was interfered with by this Court holding that it was obligatory for the trial court to decide the said dispute also in the suit. The said decision may not be of any application to the facts of the present case. In the result, the second appeal is devoid of merits and the same is, accordingly, dismissed. It is, **RSA.No.493/2010.** 6 however, made clear that the dismissal of the appeal will not preclude the appellant from filing a separate suit for partition of the share of the property allotted to respondents 4 to 7 in the final decree application, if he is entitled to a share over the same. All the interlocutory applications in this appeal are closed. _**Sd/-**_ **JUDGE.** **P.B.SURESH KUMAR,** _**Kvs/-**_ _// true copy //_ _PA TO JUDGE._