K.T. Thomas v. Anna @ Accamma John and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940 UNNUMBERED OP(C).No. 136 of 2018 (AGAINST THE ORDER DATED 30.05.2017 IN IA NO.917/2013 IN OS NO.136/1986 OF PRINCIPAL SUB COURT, KOTTAYAM) ## PETITIONER: K.T.THOMAS, KOOTTUMKAL HOUSE, MELAMPARAKKARA, VAYALIL PURAYIDAM, MEENACHIL TALUK, KOTTAYAM. BY ADVS.SRI.P.R.VENKETESH SRI.G.KEERTHIVAS ## RESPONDENTS: 1. ANNA @ ACCAMMA JOHN, MECHIYANIYIL HOUSE, BHARANANGANAM KARA, BHARANANGANAM VILLAGE, MEENACHIL TALUK. 686 578 2. TOMY THOMAS, KOOTTUMKAL HOUSE, ULLANATTU KARA, BHARANANGANAM KARA VILLAGE.686 578 3. BRIJITH MATHEW, C/O.A.T.MATHEW, ELAMBASSERIL HOUSE, MOONNILAVU P.O., KOTTAYAM DISTRICT. 686 579 4. T.C.MATHEW THANNIKUNNEL HOUSE, KALATHUKADAVU P.O., POOVANTHANI KARA, KOTTAYAM DISTRICT. 686 579 5. T.C.ANTONY, THANNIKUNNEL HOUSE, PLASSANAL P.O., KOTTAYAM DISTRICT.686 579 6. T.C.CHACKO, THANNIKUNNEL HOUSE, ALAKODE P.O., OTTATHAI KARA, KANNUR DISTRICT.670 571 7. TOLY JOHN, THEKKEPARAMPU HOUSE, KARUVANCHAN P.O., ALAKODE VIA, THALIPARAMBU TALUK. 670 571 8. ISAMMA JOY, OZHUKAYIL HOUSE, CHELAKARA P.O., PANDARAPPALLI, THRISSUR DISTRICT.680 586 9. MONCY GEORGE, VALIYAKALAYIL HOUSE, ERTHIDUKKU P.O., KUMBALANG KARA, KASARGODE DISTRICT. 10. AVIRA JOSEPH, THANNIKUNNEL HOUSE, ALAKODE P.O., OTTATHAI KARA, KANNUR DISTRICT.670 571. 11. SEBASTIAN JOSEPH, THANNIKUNNEL HOUSE, ALAKODE P.O., OTTATHAI KARA, KANNUR DISTRICT.670 571. 12. K.O.OUSEPH, KOOTTUMKAL HOUSE, THIRUVANKULAM P.O., THIRUVANKULAM KARA. 682 303 13. SEBASTIAN, PUTHIYIDATHUCHALIL, PIZHAKU P.O., MANATHOOR KARA. UNNUMBERED OP(C).No. 136 of 2018 2 14. LILLYKKUTTY, W/O.SEBASTIAN,PUTHIYIDATHUCHALIL, PIZHAKU P.O., MANATHOOR KARA.686 655 15. BABYCHAN JOSEPH, THANNIKUNNEL HOUSE, KURUMANNU P.O., MEENACHIL TALUK. 16. JASMIN JOSEPH, KARIYAMPURAYIDOM HOUSE, POONJAR P.O., POONJAR KARA, MEENACHIL TALUK. 686 581 17. TONY.M.ALEX, MACHIYANICKAL HOUSE, BHARANNGANAM KARA, BHARANANGANAM VILLAGE. 686 578 ADV. SRI.P.VISWANATHAN, AMICUS CURIAE THIS UNNUMBERED OP(C) HAVING COME UP FOR ORDERS ON 08.06.2018,THE COURT ON 06-07-2018 PASSED THE FOLLOWING: ## **“C.R.”** ## **A.HARIPRASAD, J. -------------------------------------Z O.P.(C). No.136 of 2018 -------------------------------------Dated this the 6[th] day of July, 2018** ## **ORDER** Legal questions arising for determination are two fold. Firstly, whether a defendant in a partition suit, who opposed partibility of the estate and whose share was not determined in the preliminary decree, could straight away apply for passing a final decree, without getting a supplementary preliminary decree passed? Secondly, whether an original petition, under Article 227 of the Constitution of India, could be maintained against an order, whereby an application filed by the said defendant for passing a supplementary final decree was dismissed? 2. The matter came up before the Court on an objection raised by the Registry that the original petition for the above relief is not maintainable and the remedy of the petitioner, if at all, is only to file an appeal under the provisions of the Code of Civil Procedure, 1908 (in short, “Code”). 3. Heard Sri.Keerthivas G., learned counsel appearing for the petitioner. Learned counsel, Sri.P.Viswanathan ably assisted this Court as 2 Z O.P.(C). No.136 of 2018 amicus curiae in resolving the legal issue . 4. Before answering the questions posed, I shall state relevant facts briefly. Petitioner is the 4[th] defendant in a suit for partition. It is averred in the plaint that the sole plaintiff and the defendants 1 to 3 are entitled to get 1/4[th] share each in the plaint schedule property. Defendants 1, 4 and 5 in their turn contended that the property is not partiable and the plaintiff's rights, if any, are barred by ouster, adverse possession and limitation. Trial court's decree of dismissal was challenged before this Court in a first appeal. After hearing the parties, this Court found that the plaint schedule properties are partiable and also that the plaintiff is entitled to 1/4[th] share in the properties. Subsequently, the plaintiff filed a final decree application and obtained a final decree passed by allotting her 1/4[th] share over the properties. She had taken delivery of the properties set apart to her share. 5. Petitioner, the 4[th] defendant in the suit, is the son of the 3[rd] defendant, who did not contest the case. Since the 3[rd] defendant did not pay the requisite court fee, his share was not declared and no allotment was made to him in the preliminary decree. Whether that procedure adopted by the court is correct or not will be considered later. Petitioner contends that he purchased the 3[rd] defendant's 1/4[th] share over the plaint schedule item Nos.1 to 3 properties as per a sale deed. It is therefore Z O.P.(C). No.136 of 2018 3 contended that he is entitled to get allotment of the above share. In the application, the petitioner's siblings raised a specific contention that the sale deed relied on by the petitioner is a forged document and it is not executed by the 3[rd] defendant. Factually, entitlement of the petitioner for claiming allotment has been disputed. As per the impugned order, the trial court observed that since the 3[rd] defendant's share itself was not declared in the preliminary decree and that the assignment said to have been made by the 3[rd] defendant in favour of the 4[th] defendant (petitioner) is under challenge, the application cannot be maintained. 6. Without labouring much, the first point can be easily answered. Section 2(2) of the Code defines “decree” in the following terms: _“_ _**decree** ” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-_ _(a) any adjudication from which an appeal lies as an appeal from an order, or_ _(b) any order of dismissal for default_ _**Explanation** .- A decree is preliminary when further proceedings have to be taken before the suit can be_ 4 Z O.P.(C). No.136 of 2018 _completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”_ 7. Insofar as a suit for partition is concerned, Order XX Rule 18 of the Code may also be relevant. Hence I quote it: _“_ _**Decree in suit for partition of property or separate possession of a share therein** .-Where the Court passes a decree for the partition of property or for the separate possession of a share therein, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving, such further directions as may be required.”_ 8. On a plain reading of the above provisions, it can be seen that the Code does not impose any restriction on the court for passing a final decree in any suit in one stroke. But the court has to consider whether it will be convenient in a given case to pass a final decree straight away. If it is not convenient in the facts and circumstances of the case, the court shall pass a preliminary decree, followed by a final decree. It goes without saying that in the preliminary decree passed in a suit for partition, the court will have to enter a definite finding as to whether the properties are available for partition and if so, who are all the rightful persons entitled to a share, and further, what is the extent of each sharer's right. Unless an 5 Z O.P.(C). No.136 of 2018 unequivocal pronouncement is made by the court in respect of the above aspects, a preliminary decree cannot be said to be complete. Questions like entitlement for reservation of any particular property in favour of anyone without valuation or exemption of an item of property from partition are matters to be decided in the preliminary decree stage itself, without relegating them to the final decree, because such questions are completely extraneous to the considerations in a final decree proceedings, where proper and equitable allotment of the property, according to the shares, alone takes place. 9. A final decree, as defined in Explanation to Section 2(2) of the Code, completely disposes of the suit. Where a decree does not completely dispose of the suit, it is a preliminary decree (see **Raghavan Pillai v. Damodaran Nair (1979 KLT 406)** and **Sunil Sethu v. Kunju Kunju Karunakaran (2014 (4) KHC 18** ). 10. It has been repeatedly mentioned in the impugned order that the 3[rd] defendant's share was not declared in the preliminary decree for want of payment of requisite court fee. It is my definite view that such a practice is not only improper, but also illegal. Order XX Rule 18 of the Code, quoted above, will clearly show that where a court passes a decree for partition of property or for separate possession of a share therein, the court may pass a preliminary decree, if the partition or separate 6 Z O.P.(C). No.136 of 2018 possession cannot be conveniently made without further enquiry. It is mandatory that the preliminary decree should declare the rights of the several parties interested in the property. The declaration of rights of the parties to a partition suit is not dependent on payment of court fee by the defendant/defendants. In the plaint itself, the plaintiff must have claimed partition and separate possession of the joint properties asserting his share, as well as the shares to which the defendants are entitled. Once the court accepts the plaintiff's case and finds that calculation of the shares in the plaint is correct, it becomes the bounden duty of the court to pass a preliminary decree, declaring the rights of the several parties, including the share interest of the defendant/defendants. Payment of court fee by a defendant can be insisted only for separation of his share. It is therefore clear that the court below committed a grave legal error in not declaring the share of the contesting defendants, merely because they failed to pay court fee. Sub-section (3) of Section 37 of the Kerala Court Fees and Suits Valuation Act, 1959 also makes the position clear, wherein it is stated that a defendant claiming partition and separate possession of his share of property shall pay fee on his written statement computed on half the market value of his share or at half the rates specified in Subsection (2) of the Section, according as such the defendant has been excluded from possession or is in joint possession. Therefore it will be 7 Z O.P.(C). No.136 of 2018 clear that payment of court fee by a defendant is not a condition precedent for declaring his share. It affects only actual partition and separation of his share in the property. 11. In the Civil Rules of Practice, Kerala, Chapter VI deals with the special procedure in particular cases. The special procedures relating to partition suits are dealt with in Rules 228 to 238. Rule 228 says that in every suit for partition all persons entitled to shares shall be joined as parties. It also says that an alienee from a co-owner shall also be made a party to the suit if it is alleged that the alienation is not binding on the plaintiff - co-owner. 12. Rule 230 says that at the hearing of the suit, the court shall determine who are the persons interested in the joint property and their respective shares and interests therein. All these aspects will clearly show that it is the responsibility of the court to determine the rights of parties to a partition suit at the time of passing a preliminary decree. Therefore, the procedure adopted by the court below in this case is illegal and the defendants share should have been declared. 13. “Partition” is a re-distribution or adjustment of pre-existing rights among the co-owners/co-parceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. “Separation of share” is a 8 Z O.P.(C). No.136 of 2018 species of partition. When all the co-owners/co-sharers get separated, it is a partition. Separation of shares refers to a division, where only one or only a few among several co-owners/co-parceners get separated and others continue to be joint or continue to hold the remaining property jointly without a division by metes and bounds. (see **Shub Karan Bubna v. Sita Saran Bubna ((2009) 9 SCC 689** ). 14. In a suit for partition, there can be multiple preliminary decrees. This proposition is no more res integra. In **Phoolchand v. Gopal Lal (AIR 1967 SC 1470** ) the Supreme Court in candid terms held that there is no embargo created by the Code for passing more than one preliminary decree, if circumstances justify the same and it may be necessary to do so particularly in partition suits. Following quotation will be relevant: _“ We are of 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_ 9 Z O.P.(C). No.136 of 2018 _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 of 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 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.”_ 15. Legal principles aforementioned take me to the logical conclusion that in a suit for partition, there can be any number of preliminary decrees passed, if the circumstances of the case justify. But, it should be passed before passing of the final decree in the suit. Without deciding the claim of partibility of the estate and the share to which a claimant is entitled in a preliminary decree proceedings, a party cannot straight away ask for separation of his shares in the final decree proceedings. 10 Z O.P.(C). No.136 of 2018 16. The case on hand is a typical example where the plaintiff's share alone was separated from the remaining sharers. In otherwords, the properties belonging to defendants 1 to 3 remained as joint properties, even after passing the preliminary decree. Without deciding in a supplementary preliminary decree proceeding the rights of the petitioner (4[th] defendant) to get a share, he cannot straight away claim allotment through final decree proceedings. That apart, some of the parties to the suit have raised objections regarding the purported assignment by the 3[rd] defendant in favour of the petitioner. Further, since a final decree has already been passed, the petitioner's remedy is not seeking a supplementary preliminary decree passed, but to seek partition through a separate suit. That is the only option available to the petitioner in the facts and circumstances since the suit in question has come to an end in all respects. Viewing from any angle, the petitioner is not entitled to get a final decree passed as contended before the court below. Therefore, the learned trial Judge was right in dismissing the application on that count. 17. Now I shall move on to the second question raised in this case. 18. Sri.Keerthivas contended that objection raised by the Registry that instead of an original petition under Article 227 of the Constitution, an appeal should have been preferred under Order XLIII of the Code is not Z O.P.(C). No.136 of 2018 11 sustainable. According to him, the impugned order can neither be qualified as a decree nor as an appealable order. 19. Section 104 of the Code specifically says that an appeal shall lie from the orders prescribed therein and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, no other orders are appealable. Order XLIII Rule 1 of the Code is also relevant for this purpose, which specifies the orders from which an appeal shall lie. It is contended by Sri.Keerthivas that the order now under challenge does not fall within the prescriptions in Section 104 or Order XLIII Rule 1 of the Code. 20. Sri.P.Viswanathan argued that even though an application for passing a supplementary final decree was rejected, there is an adjudication by the court that the petitioner/4[th] defendant is not entitled to get a supplementary final decree passed and therefore it amounts to a decree. 21. There cannot be a dispute for the proposition that in exceptional cases, a supplementary final decree can be passed, provided the original final decree or the final decree passed earlier had not concluded the matters sought to be declared in the supplementary final decree. Needless to say that there cannot be a supplementary final decree passed touching upon the matters already concluded in the earlier final 12 Z O.P.(C). No.136 of 2018 decree proceedings. 22. That provisions should be made in the final decree in order to effectuate the rights determined in the preliminary decree is a fundamental rule. It is therefore clear that without deciding the right, a defendant cannot short cut the route of getting a supplementary preliminary decree passed in his favour before approaching the court for a supplementary final decree. In the facts of this case, the position is still worse. Except the share of the plaintiff, shares of other defendants were not declared and ordered to be separated. Therefore, the only remedy of the defendants would have been to get a supplementary preliminary decree passed before passing a final decree and then to apply for a final decree. However, that course is not open in this case because a final decree has already been passed determining the rights of the parties conclusively. The case on hand, wherein an application for a final decree was dismissed citing various reasons, amounted to an adjudication of the rights of the petitioner. An appeal can be preferred against an order refusing to pass a final decree in the same way an appeal can be maintained against an order passing a final decree. That too amounts to an adjudication, satisfying the definition of decree. So, a regular appeal could have been maintained, but certainly not at this stage. 23. It is a well settled legal proposition that an interlocutory 13 Z O.P.(C). No.136 of 2018 application filed by a party to a partition suit for passing a final decree is only a reminder to the court for fully and finally discharging its obligations. In otherwords, since the court adjourns the case _sine die_ after passing a preliminary decree, an application filed for passing a final decree by one of the parties is only a request to the court to finally dispose of the case, which amounts to its non-negotiable responsibility. Notwithstanding that the final adjudication in such an application is captioned normally as an order, in reality it is a final judgment, concluding all the aspects relating to the allotment of properties. Only by such a final judgment, the suit could be said to be concluded. Hence, from this perspective also, the order rejecting an application for passing a final decree becomes appealable under Section 96 read with Order XLI of the Code. 24. However, in the facts of this case, whether a regular appeal will yield any result is an extremely doubtful proposition. From an academic angle, it can be held that an appeal is maintainable against an order refusing to pass a final decree and such an order will fall within the definition of decree in Section 2(2) of the Code, because it amounts to a formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of a party. 25. Although the Registry relied on the decision in **Perumal Vadyar and others v. Devi and others (1991(1) KLJ 65)** , I do not find any 14 Z O.P.(C). No.136 of 2018 similarity in the facts and legal issues in this case to the aforementioned case. Still, I find the objection raised by the Registry is proper and valid for the aforementioned reasons. Therefore, the objection raised by the Registry is sustained and the unnumbered original petition is dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**