K.R. CHANDRAN & RAJEE CHANDRAN v. P.R. SATHEESAN, SARASAMMA SREEDHARAN, P.R. SATHIYAMMA, K.R. GAURI, K.R. SASI & K.R. PRASAD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945 OP(C) NO. 2492 OF 2023** **AGAINST OS 838/2018 OF ADDITIONAL MUNSIFF COURT ,KOTTAYAM PETITIONERS/DEFENDANTS 1 & 2 IN O.S. NO.838/2018/RESPONDENTS 1&2 IN I.A.NO.16/2020 AND IA.NO.4/2022 FILED FROM THE SIDE OF THE PLAINTIFFS:** 1 K.R. CHANDRAN AGED 55 YEARS S/O. LATE SRI K.K.RAGHAVAN KULANGARA PUTHENPARAMBIL HOUSE, MUTTAMBALAM P.O., MUTTAMBALAM VILLAGE, KOTTAYAM TALUK, PIN - 686004 2 RAJEE CHANDRAN AGED 50 YEARS W/O. SRI K.R. CHANDRAN, KULANGARA PUTHENPARAMBIL HOUSE, MUTTAMBALAM P.O., MUTTAMBALAM VILLAGE, KOTTAYAM TALUK, PIN - 686004 BY ADVS. VADAKARA V.V.N.MENON N.S.GOPAKUMAR S.MOHANA KUMARAN NAIR MUHAMED ABDUL KADER A.S. **RESPONDENTS/PLAINTIFFS 1 TO 3 AND DEFENDANTS 3, 4, & 5 IN O.A.NO.838/2018 AND PETITIONERS AND RESPONDENTS 3 TO 5 IN I.A.NO.4/2022 FILED FROM THE SIDE OF THE PLAINTIFFS:** 1 P.R. SATHEESAN S/O. K.K. RAGHAVAN, AGED 59 YEARS, KP 18/482(8), CHIRATHALAYKKAL, KALLAYAM P.O., KUDAPPANA, VATTAPPARA VILLAGE, THIRUVANANTHAPURAM TALUK, PIN - 695005 2 SARASAMMA SREEDHARAN W/O. SHRI P.V. SREEDHARAN, AGED 61 YEARS, SARASU BHAVAN, TC NO. 20/17, KARAMANA P.O., THYCADU VILLAGE, THIRUVANANTHAPURAM TALUK, PIN-(DIED), NOT REPRESENTED BY LEGAL REPRESENTATIVES, PIN - 695002 3 P.R. SATHIYAMMA AGED 57 YEARS W/O. LATE SABU, KRISHNA BHAVAN, CHINGAVANAM, NATTAKAM P.O., NATTAKAM VILLAGE, KOTTAYAM TALUK, PIN - 686013 4 K.R. GAURI AGED 89 YEARS **O.P.(C).No. 2492 of 2023** ..2.. W/O. K.K. RAGHAVAN, PUTHENPARAMBIL HOUSE, MUTTAMBALAM P.O., MUTTAMBALAM VILLAGE, KOTTAYAM TALUK (DIED)., PIN - 686004 5 K.R. SASI AGED 68 YEARS S/O. K.K. RAGHAVAN, PUTHENPARAMBIL HOUSE, MUTTAMBALAM P.O., MUTTAMBALAM VILLAGE, KOTTAYAM TALUK, PIN - 686004 6 K.R. PRASAD AGED 63 YEARS S/O. K,K. RAGHAVAN, KULANGARA PUTHENPARAMBIL HOUSE, CHINGAVANAM, NATTAKAM P.O., NATTAKAM VILLAGE, KOTTAYAM TALUK, PIN - 686013 BY ADVS. S. RANJIT A.SIVAMANI KAIMAL(K/42(1)/1972) GOKUL DAS V.V.H.(K/420-A/2005) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **O.P.(C).No. 2492 of 2023** **==> picture [37 x 9] intentionally omitted <==** ## **'C.R.'** ## **J U D G M E N T** _**Dated this the 5[th] day of December, 2023**_ **Whether a partition suit will abate as a whole, on the death of one of the plaintiffs, if his legal heirs are not brought on record, is the question raised in this Original Petition. Defendants 1 and 2 in O.S.No.838/2018 of the Additional Munsiff Court, Kottayam, are the petitioners herein. They challenge Ext.P18 order, which found that the suit can continue insofar as the 1[st] plaintiff and the defendants are concerned,** _**de hors**_ **the death of the 2[nd] plaintiff. The order also allowed I.A.No.4/2022, an application preferred by the plaintiffs to call for a record from the Judicial First Class Magistrate Court-I, Kottayam.** **O.P.(C).No. 2492 of 2023** **==> picture [37 x 9] intentionally omitted <==** **2. Heard Sri.Vadakara V.V.N.Menon, learned counsel for the petitioners and Sri.S.Ranjit, the learned counsel for the respondents.** **3. Learned counsel for the petitioners submit that, by the death of the 2[nd] plaintiff, the entire suit got abated, inasmuch as, the decree which can be passed in a partition suit is inseparable and indivisible. In this regard,** **learned counsel relied upon the following judgments of the Hon'ble Supreme Court:** **(a) Budh Ram & Others v. Bansi & Others [2010 (11) SCC 476]** **(b)** _**Ram Sarup v. Munshi**_ **[AIR 1963 SC 553] (c) Hemareddi v. Ramachandra Yallappa Hosmaniand Others [2019 (6) SCC 756]** **As regards, allowing I.A.No.4/2022, learned counsel would point out that, no reason, whatsoever, has been stated by the learned Munsiff in allowing the same. On these premises,** **O.P.(C).No. 2492 of 2023** **==> picture [37 x 9] intentionally omitted <==** **learned counsel seeks to set aside Ext.P18 order and treat the suit, O.S.No.838/2013, as abated.** **4. The submission was seriously opposed by the learned counsel for the respondents, pointing out that the death of the 2[nd] plaintiff would not result in the entire suit getting abated. The right of plaintiffs 1 and 3 survives, in terms of Order XXII, Rule 3 of the C.P.C. Therefore, that part of Ext.P18 order, which permits continuance of the suit, does not suffer from any illegality or infirmity. As regards Ext.P12 I.A.No.4/2022, learned counsel for the respondents submits that the document called for is highly relevant, wherefore, the second part of Ext.P18 order, allowing I.A.No.4/2022, is also innocuous, warranting no interference from this Court.** **5. Having heard the learned counsel appearing on both sides, this Court is of the opinion that the** **O.P.(C).No. 2492 of 2023** **==> picture [37 x 9] intentionally omitted <==** **petitioners' objection to the first part of Ext.P18 is only to be dismissed. This Court cannot endorse the submission that a suit for partition of the family property by the sharers will stand abated on the death of one of the plaintiffs/sharers. As it is well settled, the conceptual difference between the plaintiff and the defendant will be reduced to a vanishing point in a partition suit, since both the plaintiffs and the defendants partakes the character of persons prosecuting the suit, ultimate relief being granted to each and every sharer, subject to their entitlement. This Court is not of the opinion that a decree to be passed in a partition suit, is indivisible and inseparable, so as to result in the abatement of the whole suit, on the death of one of the plaintiffs. Before concluding the point, this Court will refer to the judgments relied upon by the learned counsel for the petitioner in** **O.P.(C).No. 2492 of 2023** **==> picture [37 x 9] intentionally omitted <==** **contending that the suit, as a whole, abates on the death of the one of the plaintiffs. The first decision is** _**Budh Ram & Others v. Bansi & Others**_ **[2010 (11) SCC 476]. A perusal of the dictum laid down therein would only indicate that, the question whether non-substitution of the legal representatives of a party to the suit would abate the suit** _**in toto,**_ **or only** _**qua**_ **the deceased party, would essentially depend upon the facts, circumstances and reliefs sought for in the individual case. Paragraph 19 of the** **judgment is extracted herebelow.** **“Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of LRs of the defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respondents, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter-dependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the** **O.P.(C).No. 2492 of 2023** **==> picture [37 x 9] intentionally omitted <==** **deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-`-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test.”** **6. In that case, the relief sought for was declaratory in nature and a decree was passed to the effect that the plaintiff, along with another co-owner, is entitled to be in joint possession of the property. On the peculiar facts, the Hon'ble Supreme Court upheld the High Court's conclusion that, upon non-impleadment of one of the defendants, the appeal abates as a whole. This Court notice that** _**Budh Ram**_ **(supra) was one dealing with Order XXII, Rule 4, which relates to the death of one of the several defendants;** **O.P.(C).No. 2492 of 2023** **==> picture [37 x 9] intentionally omitted <==** **whereas, the instant case is with respect to death of one of the several plaintiffs, governed by Order XXII, Rule 3, that too in a suit for partition. The second judgment is by a Constitution Bench of the Hon'ble Supreme Court in** _**Ram Sarup v. Munshi**_ **[AIR 1963 SC 553], where again, on the peculiar facts arising from a decree in a pre-emption suit, the Hon'ble Supreme Court held that the decree being joint, the whole appeal abates on the death of one of the appellants pending appeal, when no application is made to bring on the record his legal representatives. The Hon'ble Supreme Court essentially held that, where a decree is a joint one and a part of the decree has become final by reason of abatement, the entire appeal must be held to be abated. Since, the decree in question in that case was one for pre-emption and since there can be no partial pre-emption, the Supreme Court held that the entire appeal abates on the** **O.P.(C).No. 2492 of 2023** **==> picture [44 x 9] intentionally omitted <==** **death of one of the appellants, upon failure to bring his legal representatives. Yet another decision referred to by the learned counsel is** _**Hemareddi**_ **v.** _**Ramachandra Yallappa Hosmani and Others**_ **[2019 (6) SCC 756]. Here again, the reliefs sought for was to declare that defendant No.1 was not the adopted son and he has no title or interest over the suit property. A prohibitory injunction against the defendant, not to disturb the joint possession of the suit property by the plaintiff and 2[nd] defendant, was also sought for. The 2[nd] appellant died pending appeal and no steps were taken to implead his legal heirs. On facts, the Hon'ble Supreme Court held that the appeal abates as a whole.** **7. On going through the decisions cited by the learned counsel for the petitioner, this Court notice that none of the decisions pertains to a suit for partition. The precise issue as to,** **O.P.(C).No. 2492 of 2023** **==> picture [44 x 9] intentionally omitted <==** **whether the suit, as a whole, abates on death of one of the parties in a partition suit, consequent to failure to implead his legal heirs, fell for consideration before the Hon'ble Supreme Court in** _**Mahmud Mian(dead) through Lrs. and Another**_ **v.** _**Shamsuddin Mian (dead) through Lrs. and Others**_ **[2005 (11) SCC 582]. The Hon'ble Supreme Court held that in a partition suit, the appeal could not have abated in its entirety on the death of one of the parties. Similarly, in** _**Siravarapu Appa Rao and Others**_ **v.** _**Dokala Appa Rao**_ **[2023 (1) RCR(Civil) Civil Appeal No.7145/2022], the Hon'ble Supreme Court held that, where there are more than one plaintiffs, the entire suit cannot be held to be abated on the death of one of the plaintiffs. The Hon'ble Supreme Court held so, after taking stock of another judgment of the Hon'ble Supreme Court in** _**Delhi Development Authority v. Virat Chand Anand and Other**_ **[(2022) 10 SCC 428]. Again, a learned** **O.P.(C).No. 2492 of 2023** **==> picture [44 x 9] intentionally omitted <==** **Single Judge of the Calcutta High Court, in** _**Sri Tribhanga Bihari Bhanja & Others v. Sri Prahlad Chandra Tung & Others**_ **[2005 SCC Online Cal 386], considered the question, whether the whole suit abates upon the death of a party to a partition suit and held in the negative. To hold that the entire suit will abate on the death of one of the plaintiffs, in total negation of the surviving plaintiffs' right will be preposterous, harsh and inequitable. In the circumstances, the said contention of the petitioner would stand dismissed.** **8. The only mistake which this Court notice in Ext.P18 order, insofar as abatement is concerned, is the finding that, the suit is not abated and can continue, insofar as the plaintiffs and the defendants are concerned. As a matter of fact, the suit insofar as the 1[st] plaintiff and the 3[rd] plaintiff, along with the defendants, is liable** **O.P.(C).No. 2492 of 2023** **==> picture [44 x 9] intentionally omitted <==** **to be continued. This Court clarifies that the suit as against the 2[nd] plaintiff alone will stand abated, as things stand now.** **9. Coming to I.A.No. 4/2022, this Court notice that the last para in Ext.P13 counter-affidavit pertains to the objection to the document being called for. In Ext.P18 order, this Court finds no discussion, whatsoever, while the Munsiff chose to allow No.4/2022. The objection of the petitioners herein is not seen considered. In the circumstances, that part of Ext.P18 order, which allowed I.A.No.4/2022, has to be interfered with. Accordingly, Ext.P18 order, insofar as it pertains to allowing I.A.No.4/2022, is set aside. The learned Munsiff is directed to consider afresh I.A.No.4/2022, after taking into consideration the objection of the petitioners herein, as well. Fresh orders will be passed in the said interlocutory application, in accordance** **O.P.(C).No. 2492 of 2023** **==> picture [44 x 9] intentionally omitted <==** **with law, expeditiously. Inasmuch as the suit is of the year 2018, the learned Munsiff will make every endeavour to expedite the disposal of the suit itself.** **This Original Petition will stand disposed of accordingly.** Sd/- **JUDGE** **C. JAYACHANDRAN** **TR** **O.P.(C).No. 2492 of 2023** ..15.. ## **APPENDIX OF OP(C) 2492/2023** ## PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF THE PLAINT DATED NO. 838/2018 FILED BY THE RESPONDENTS 1 TO 3 HEREIN AS PLANTIFFS IN THE COURT BELOW. Exhibit P1(a) TRUE PHOTOCOPY OF THE WRITTEN STATEMENT DATED 2/7/2019 FILED BY DEFENDANTS 1,2,3 AND 5 IN O.S NO.838/201 Exhibit P2 TRUE PHOTOCOPY OF JUDGEMENT DT.28-02-20 DISMISSING O.S. NO. 838/2018 FOR DEFAULT BY THE COURT BELOW Exhibit P3 TRUE PHOTOCOPY OF THE R.P(I.A.) NO. 16/2020, DATED' 22-6-2020 WITH AFFIDAVIT FILED BY THE PLAINTIFFS IN O.S. NO. 838/2018 IN THE COURT BELOW Exhibit P4 TRUE PHOTOCOPY OF THE OBJECTION DATED. 12-10-2021 FILED BY THE PETITIONERS AGAINST EXT.P3 PETITION. Exhibit P5 TRUE PHOTOCOPY OF THE ORDER DATED 10-102022 ALLOWING EXT. P3 BY THE ADDITIONAL MUNSIFF COURT KOTTAYAM ODER IN RP NO 16/2020 IN OS NO 838/2018 Exhibit P6 TRUE PHOTOCOPY OF THE DEATH CERTIFICATE OF THE 2ND PLAINTIFF ISSUED ON 2-3-2021 BY THE REGISTRAR OF BIRTHS & DEATHS, THIRUVANANTHAPURAM CORPORATION Exhibit P7 TRUE PHOTOCOPY OF WILL DEED DATED 25-101991 EXECUTED BY DECEASED K.K. RAGHAVAN TO THE 18T PETITIONER. Exhibit P7(a) TRUE PHOTOCOPY OF THE AFFIDAVIT DATED 21.10.2021 OF THE LIVING SRI. MALLUSSERI K,P. GOPINATH Exhibit P8 TRUE PHOTOCOPY OF SETTLEMENT DEED NO. 388 DATED 14-2-2018 EXECUTED BY THE 1ST PETITIONER, IN FAVOUR OF HIS WIFE THE 2NDPETITIONERINTHEADDLSUBREGRSTRY'KOTTAYAM Exhibit P8(a) TRUE PHOTOCOPY TAX RECEIPT FOR RS. 53/ DATED 2/3/2018 ISSUED FROM MUTTAMBALAM VILLAGE OFFICE Exhibit P8(b) TRUE PHOTOCOPY OF THE PROPERTY TAX ## **O.P.(C).No. 2492 of 2023** ..16.. RECEIPT NO MTF 28 DATED 03/06/2020 ISSUED TO THE 2ND PETITIONER Exhibit P9 TRUE PHOTOCOPY APPLICATION DATED 8/11/17 SUBMITTED BY THE 1ST PETITIONER TO THE DISTRICT COLLECTOR, KOTTAYAM Exhibit P10 TRUE PHOTOCOPY OF PROCEEDINGS NO. DCKTM/ 11792/2017-E9(2)KDIS DATED 28-11 -2017 Exhibit P10(a) TRUE PHOTOCOPY OF ERRATUM NOTIFICATION NO. DCKTM/ 11792/2017-E9(2)KDIS DATED 28-11-2017 OF THE DISTRICT COLLECTOR, KOTTAYAM DISTRICT Exhibit P11 TRUE PHOTOCOPY OF MEMO DT. 25-11-22 FILED BY THE COUNSEL OF THE PLAINTIFFS IN O.S.838/2018 Exhibit P12 TRUE PHOTOCOPY OF I.A.NO. 4/2022 WITH AFFIDAVIT DATED. 24/ 11 /2022 FILED BY THE PLAINTIFF IN O.S.NO. 838/2018 IN THE COURT BELOW Exhibit P13 TRUE PHOTOCOPY OF OBJECTION DATED 6-12023 FILED BY THE PETITIONERS AGAINST EXTS. P11& P12 Exhibit P14 TRUE PHOTOCOPY OF THE LETTER DATED 12.2.2021 SENT BY THE BRANCH MANAGER, KSFE, MANARCAUD BRANCH TO THE 2ND PETITIONER Exhibit P15 TRUE PHOTOCOPY OF LETTER DATED 12-2-2021 SENT BY THE BRANCH MANAGER, KSFE, MANARCAUD BRANCH TO THE 2ND PETITIONER Exhibit P16 PHOTOCOPY OF I.A. NO. 5/2023 WITH AFFIDAVIT DATED 5-1-2023 FILED BY THE PETITIONERS IN THE SAID SUIT Exhibit P17 PHOTOCOPY OF I.A. NO. 6/2023 WITH AFFIDAVIT DATED 01-07-2023 FILED BY THE PETITIONERS IN THE SAID SUIT Exhibit P18 TRUE PHOTOCOPY OF ORDER DATED 1-3-2023 IN O.S.NO. 838/2018 DISPOSING I.A.NO. 4/2022 ALSO BY THE ADDL. MUNSIFF'S COURT, KOTTAYAM