Kuttiaman @ Sreedharan, Sundaran, Unniperachan @ Asokan, and Sivadasan @ Devadasan v. RadhaKrishnan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 6TH DAY OF JANUARY 2017/16TH POUSHA, 1938** ## **OP(C).No. 2249 of 2014 (O) ---------------------------** **AGAINST THE ORDER/JUDGMENT IN OS 349/2013 of III ADDL.SUB COURT, KOZHIKODE DATED 21-12-2013** **PETITIONER(S):** **-------------** **1. KUTTIAMAN @ SREEDHARAN, AGED 75 YEARS** - **S/O. PERACHAN RESIDING AT PALAKKADI HOUSE, P.O. CHOOLOOR, NIT, KOZHIKODE-673601.** **2. KUTTIAMAN @ SUNDARAN,** - **S/O.PERACHAN RESIDING AT PALAKKADI HOUSE,** - **P.O. CHOOLOOR, NIT, KOZHIKODE-673601.** **3. UNNIPERACHAN @ ASOKAN,** - **S/O.PERACHAN RESIDING AT PALAKKADI HOUSE,** - **P.O. CHOOLOOR, NIT, KOZHIKODE-673601.** **4. SIVADASAN @ DEVADASAN** **S/O.PERACHAN RESIDING AT PALAKKADI HOUSE,** - **P.O. CHOOLOOR, NIT, KOZHIKODE-673601.** **BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH** **RESPONDENT(S):** - **--------------** **1. RADHAKRISHNAN** **S/O. UKKU NAIR, RESIDING AT PARAMBIL HOUSE, POOLAKKODE AMSOM CHOOLOOR DESOM, P.O. VELLALASSERI, KOZHIKODE-673601.** **2. LAKSHMI AMMA,** **D/O. KANARAN NAIR, RESIDING AT MELE IYYARAMBATH HOUSE, POOLAKKODE AMSOM CHOOLOOR DESOM, P.O. VELLALASSERI, KOZHIKODE-673601.** **3. KALLIANI AMMA,** - **D/O. KANARANA NAIR,RESIDING AT MELE IYYARAMBATH HOUSE, POOLAKKODE AMSOM CHOOLOOR DESOM,** - **P.O. VELLALASSERI, KOZHIKODE-673601.** **.....2/-** **2** ## **4. PARVATHI AMMA,** - **D/O. KANARAN NAIR,RESIDING AT MELE IYYARAMBATH HOUSE, POOLAKKODE AMSOM CHOOLOOR DESOM,** - **P.O. VELLALASSERI, KOZHIKODE-673601.** ## **5. VELAYUDHAN NAIR,** - **S/O. KANARAN NAIR,RESIDING AT MELE IYYARAMBATH HOUSE, POOLAKKODE AMSOM CHOOLOOR DESOM,** - **P.O. VELLALASSERI, KOZHIKODE-673601.** ## **6. RAVEENDRAN,** - **S/O. KUTTAN NAIR, RESIDING AT PARAMBIL HOUSE,** - **POOLAKKODE AMSOM CHOOLOOR DESOM,** - **P.O. VELLALASSERI, KOZHIKODE-673601.** ## **7. JAYASREE** - **W/O. CHANDRAN,RESIDING AT PARAMBIL HOUSE,** - **POOLAKKODE AMSOM CHOOLOOR DESOM,** - **P.O. VELLALASSERI, KOZHIKODE-673601.** ## **8. SWAPNA CHANDRAN** - **D/O. CHANDRAN,RESIDING AT PARAMBIL HOUSE,** - **POOLAKKODE AMSOM CHOOLOOR DESOM,** - **P.O. VELLALASSERI, KOZHIKODE-673601.** ## **9. SONA CHANDRAN,** - **D/O. CHANDRAN,RESIDING AT PARAMBIL HOUSE,** - **POOLAKKODE AMSOM CHOOLOOR DESOM,** - **P.O. VELLALASSERI, KOZHIKODE-673601.** **10. SANOOP CHANDRAN, S/O. CHANDRAN, RESIDING AT PARAMBIL HOUSE,** **POOLAKKODE AMSOM CHOOLOOR DESOM,** - **P.O. VELLALASSERI, KOZHIKODE-673601.** **R1 BY ADV. SRI.M.SHAJU PURUSHOTHAMAN R1 BY ADV. SRI.K.S.RAJESH** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 2249 of 2014 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1. TRUE COPY OF THE PRELIMINARY DECREE DATED 21-12-13 IN O.S. 349/12 ON THE FILE OF THE 3RD ADDITIONAL SUB JUDGE, KOZHIKODE.** **P2. TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A. 2044/14.** **P3. TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A. 2045/14.** **P4. TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT IN I.A. 2044/14.** **P5. TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT IN I.A. 2045/14. P6. TRUE COPY OF THE ORDER OF THE LEARNED SUB JUDGE DATED 16-7-2014 IN I.A. 2045/14.** **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** **// TRUE COPY //** **P.A. TO JUDGE** **rmm** **DEVAN RAMACHANDRAN , J. ------------------------------O.P (C).No. 2249 of 2014 ------------------------------Dated this the 6[th] day of January, 2017** ## **J U D G M E N T** **------------------** The petitioners wanted to implead themselves as additional defendants in a suit for partition that is instituted by the plaintiffs. The essential allegation of the petitioners is that the property that is sought to be partitioned among the plaintiffs and the defendants do not belong to them but to the petitioners. They assert that even though the original plaintiffs and defendants have been able to obtain a decree of partition allegedly by collusion, the properties that are involved in the suit are, in fact, belonging to the petitioners and not to the plaintiffs or the defendants and they, therefore claim that the properties ought not to have been included in the suit for partition. 2. To establish the claim over the properties involved in the suit, the petitioners filed two I.As, one to implead themselves in the suit and the other to re-open the preliminary decree. The court below considered the O.P (C).No. 2249 of 2014 2 application for impleadment and held that it is unnecessary and that the petitioners cannot have a locus to get themselves impleaded in the suit that has been filed by the plaintiffs for partition. It is noticed that the petitioner cannot have a claim to be impleaded as a sharer in the suit so as to claim a share in the preliminary decree as sharer of the property. This is of course without doubt. However, what has been contended by the petitioners is not that they are entitled to a share in the property but that the plaintiffs and defendants have included their property fraudulently in the plaint schedule, even though they are not entitled to the same. In effect, the contention of the petitioners is that they are the owners of the property and that the plaintiffs or the defendants cannot claim any share or right over the same. 3. In a technical way of looking, the court below was perhaps right in holding that the application under Order 1 Rule 10(2) filed by the petitioners to implead themselves in the list was unnecessary and without locus. O.P (C).No. 2249 of 2014 3 However, what the court below did not see was that the contention of the petitioners is not that they are sharers but that they are the owners of the property and that the said property has been included among the plaint schedules fraudulently. In a sence, therefore, what they are claiming is not as sharers of the property but exclusion of the property from partition, which they say has been managed by collusion and fraud by plaintiffs and defendants. 4. Since, the issue that arises in this Original Petition relate to the ownership of the property, which the petitioners claim exclusively as theirs and which the plaintiffs and defendants claim, on the other hand, to be available for partition among them, it will have to be adjudicated by the court before passing a final decree. The preliminary decree that has been passed by the court below has proceeded on the assumption that the property belongs to the plaintiffs or the defendants in some certain shares. However, the court had never an opportunity to consider the case of the petitioners in this Original O.P (C).No. 2249 of 2014 4 Petition that the property does not belong to the plaintiffs or the defendants but to them exclusively. In such view of the matter, the petitioners are necessary parties and they would then, therefore, obtain a right to be added as a party at any stage of the proceedings so as to ensure that a fraudulent final decree is not obtained. I am fortified in my view, but the judgment of this Court in **Ammini Ammal v. Krishnan and Others reported in [1978 KLT 80]** , wherein this court has already declared the law unambiguously that a person who is a necessary party has a right to be added as a party at any stage of the proceedings. This Court also declared that the proceedings do not come to an end until the final decree is passed. Even though a preliminary decree is a final decision and operate as resjudicata, however, a partition suit in which a preliminary decree has been passed is still a pending suit. 5. I am concerned more about the prospect of the petitioners having to initiate other proceedings to establish their claim thus leading to multiplicity of O.P (C).No. 2249 of 2014 5 proceedings and suits. If, as contented by them, they are the owners of the property which have been included as plaint schedule property in the suit fraudulently, then it would be inevitable that they be arrayed as necessary parties to the suit to the limited extent to prove that the said properties are not liable to be partition and that the defendants or the plaintiffs in the suit do not have any right over the same. To that limited extent, I am of the view that the petitioners should be entitled to litigate. This could be possible only if they are permitted to implead themselves as a necessary party in the lis, so as to obtain them an opportunity of proving their assertion that has made by them in their applications. 6. In such view of the matter, I set aside the order impugned in this Original Petition namely, Ext.P6 and I direct the court below to allow the application filed by the petitioners, namely I.A.No.2045/2014, pending before it and to allow the petitioners to contest their limited claim that the properties involved in the suit do not belong, in any manner, even in shares, to the plaintiffs or the O.P (C).No. 2249 of 2014 6 defendants and that it exclusively is within their ownership and possession. It is made clear that the impleadment of the petitioners is for this sole purpose and no other. Obviously, if after an enquiry as mandated under the civil procedure, the petitioners are found to be the exclusive owners of the property, the court below would be empowered to exclude that the property from the schedule of property included in the suit and then proceed to pass necessary final decree as required as per the terms of the preliminary decree. 7. The parties are directed to show appearance before the Sub Court, Kozhikode in O.S.No.349/2013 on 31.01.2017 and the registry is directed to communicate this order to the IIIrd Additional Sub Court, Kozhikode for compliance. The above Original petition is disposed of as above. ## Sd/- **DEVAN RAMACHANDRAN JUDGE** rmm/07/01/2017 // True Copy // P.A to Judge