M. Kurian and Jacob Jathikkadan v. Dr. Ashok Cherian and JINI DANRAJGEER

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 20TH DAY OF JUNE 2016/30TH JYAISHTA, 1938** **OP(C).No. 1357 of 2016 (O) ---------------------------** **EA. 68/2016 IN EP. 379/2012 IN OS.28/1987 OF PRINCIPAL SUB COURT, KOTTAYAM ...** ## **PETITIONER(S)/PETITIONERS:** **-------------------------** ## **1. M.KURIAN,** **AGED 70 YEARS S/O V.T. MATHEW, NEDUMPARAMBIL HOUSE, PALLAM P.O., PALLAM KARA, NATTAKOM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** ## **2. JACOB JATHIKKADAN,** **S/O V.T.MATHEW, NEDUMPARAMBIL HOUSE, PALLAM P.O.,PALLAM KARA, NATTAKOM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** **BY ADVS.SRI.P.R.VENKETESH SRI.G.KEERTHIVAS** **RESPONDENT(S)/COUNTER PETITIONERS:** **----------------------------------** ## **1. DR.ASHOK CHERIAN,** **S/O THARA CHERIAN, 74 SEDARS ROAD, MAMPTON WICK K.T.I. 48 B SUROY, UNITED KINGDOM.** ## **2. JINI DANRAJGEER ,** **D/O THARA CHERIAN, NO.8, VICTORIA CRESANT, CHENNAI - 600 030.** **BY ADV. SRI.RAJESH NAIR** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **OP(C).No. 1357 of 2016 (O)** ## **--------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** - **P1 TRUE COPY OF THE EXECUTION PETITION NO.379/2002 FILED BEFORE THE SUB COURT, KOTTAYAM.** - **P2 TRUE COPY OF THE EA NO.68/2016 ON THE FILES OF THE SUB COURT KOTTAYAM.** - **P3 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXHIBIT P2 BEFORE THE SUB COURT, KOTTAYAM.** - **P4 TRUE COPY OF THE ORDER IN EA.68/2016 IN EP 379/2012 IN OS 28/1987 PASSED BY THE EXECUTION COURT ON 5.4.2015 DISMISSING EXHIBIT P2.** ## **RESPONDENT(S)' EXHIBITS:** **------------------------** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **K. HARILAL, J. -----------------------------------------------------O.P. (C) No. 1357 of 2016-O -----------------------------------------------------Dated this the 20[th] day of June, 2016** ## **JUDGMENT** The petitioners are the two sons of the 1[st] Judgment Debtor in E.P.No.379/2012 in O.S.No.28/1987 on the files of the Principal Sub Court, Kottayam, and the respondents herein are the Decree Holders. They filed E.A.No.68/2016 in the above Execution Petition under Section 47 of the Code of Civil Procedure, praying that the decree, sought to be executed, be declared null and void. 2. The above Execution Petition was filed for delivery of the plaint schedule property to them and to direct the Judgment Debtors to vacate the plaint schedule property. The petitioners are the 5[th] and 10[th] sons of the 1[st] Judgment Debtor, who died on **O.P. (C) No. 1357 of 2016** -: 2 :- 18/1/1998. According to them, the suit was decreed on 21/10/2000 and the respondents/plaintiffs had not impleaded the legal heirs of the 1[st] defendant/1[st] Judgment Debtor other than the defendants 2 and 3. The 1[st] defendant has 10 children, among whom, the defendants 2 and 3 were already in the party array. Originally, O.S.No.28/1987 was dismissed by the Sub Court, Kottayam, on 16/11/1989 and the plaintiffs had preferred A.S.No.27/1991 before this Court and this Court remanded the matter to the Sub Court, Kottayam. In A.S.No.27/1991, as per a memo filed by the plaintiffs, the defendants 2 and 3 alone were recorded as the legal heirs of the 1[st] defendant/1[st] Judgment Debtor. The case of the petitioners is that the plaint schedule property is having an extent of 2 ½ Acres and from the said property, a plot of 30 cents and another plot of 20 cents were in the possession of the defendants 2 and 3, by virtue of a sale deed and a Will executed by the 1[st] defendant/1[st] Judgment ## **O.P. (C) No. 1357 of 2016** -: 3 :- Debtor. The rest of the property is under the joint possession of all the children of the 1[st] defendant, after his death. Therefore, the plaintiffs ought to have impleaded the other legal heirs also in the suit. But, they have not impleaded the legal heirs other than the defendants 2 and 3. So, the decree passed, without impleading all the legal heirs of the deceased 1[st] defendant, is null and void and it is to be set aside. So also, the decree sought to be executed is not an executable one. 3. The respondents/Decree Holders filed objection contending that there is no bona fides in the present petition and it is intended to cause delay in execution of the decree. According to them, the 1[st] defendant was adjudged only as a caretaker by this Court and the petitioners are not claiming any better rights over the property. The defendants 2 and 3 were impleaded in the suit and they had substantially represented all the legal heirs. The petitioners, who **O.P. (C) No. 1357 of 2016** -: 4 :- were fully aware of the legal proceeding, which is going on, have not gone for any proper remedy. So, they have no rights to raise any claim against the execution of the decree. The relief sought for goes beyond the scope and extent of determination under Sec.47 of the CPC. 4. After considering the rival contentions, the court below dismissed the said application, on a finding that the relief sought for in the application goes beyond the scope of determination under Sec.47 of the CPC and non-impleadment of them, as legal heirs, does not make the decree null and void. The legality and correctness of the aforesaid findings, are under challenge in this Original Petition (Civil). 5. It stands admitted that the decree was not passed against a dead person and the 1[st] defendant died before the decree and the defendants 2 and 3, who are the children of the deceased 1[st] defendant, were recorded as the legal heirs of the 1[st] defendant **O.P. (C) No. 1357 of 2016** -: 5 :- and other children of the deceased 1[st] defendant were not impleaded, as legal heirs of the 1[st] defendant. Thus, two of the legal heirs of the deceased 1[st] defendant were already in the party array. 6. It is to be borne in mind that merely on the reason that they were also the children of the deceased 1[st] defendant, they cannot claim that they were necessary parties in the suit and they ought to have been impleaded as legal representatives of the deceased 1[st] defendant, unless they inherits any kind of right from the deceased 1[st] defendant in respect of the plaint schedule property. The specific case of the respondents, which is accepted by this Court, in appeal, is that the 1[st] defendant was holding the property as a caretaker only and he has no independent right over the said property. If he has no independent right over the property, nothing to be survived or inherited, after his death. It is to be remembered that, according to Sec.2(11) of the ## **O.P. (C) No. 1357 of 2016** -: 6 :- C.P.C., 'legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. It follows that the legal heirs may be the legal representatives; but, not always. 7. Though the 1[st] defendant has raised the contentions of oral lease, fixity of tenure and adverse possession, all those contentions were repelled by the Appellate Court. It is pertinent to note that the defendants 2 and 3 were impleaded in the suit itself on a cause of action that they were also holding the property during the life time of the 1[st] defendant also. Thus, it stands undisputed that the defendants 2 and 3 were impleaded in the suit on an independent cause of action and not on the basis of the children of the diseased 1[st] defendant, though they were recorded as **O.P. (C) No. 1357 of 2016** -: 7 :- legal heirs of the diseased 1[st] defendant also. No doubt, the petitioners cannot claim the status of the defendants 2 and 3, particularly, when no right was survived, after the death of the 1[st] defendant. 8. In Mohd. Hussain v. Gopibai [2008(2) KLT SN 4 SC], the Supreme Court held that when two legal heirs of mortgagee not impleaded in the suit for redemption, other legal heirs are already on party array and there is no allegation or fraud or collusion, if there is no allegation or fraud or collusion, the suit is devoid of any inherent defect. In the instant case, the petitioners have no case that while they were in possession of the property, the defendants 1 to 3 colluded with the plaintiff and obtained the decree. In the absence of such a plea, it can be held that no prejudice is caused to them because of nonimpleadment. So, at any rate, the non-joinder of the petitioners in the suit is not fatal to decree or Execution Petition. ## **O.P. (C) No. 1357 of 2016** -: 8 :- 9. In the above analysis, I find that there is no illegality or impropriety in the impugned order and this Original Petition (Civil) is only to be dismissed. This Original Petition (Civil) is dismissed accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge