N. Nithya v. P.P. Leelavathy and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WP(C).No. 22593 of 2007(M) -------------------------OS.153/2005 of II ADDL.SUB COURT,KOZHIKODE .................... ## PETITIONER: PETITIONER ---------------------- N.NITHYA, D/O LATE KARUNAKARAN VYDIAR, W/O T.PRAVEEN, AGED 37 YEARS, RESIDING IN "AVYAYA", POST NARIPATTA, VIA KALLACHI, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY ## RESPONDENTS: RESPONDENTS ------------------------ 1. P.P.LEELAVATHY, W/O KARUNAKARAN VYDIAR, AGED 65 YEARS, KARAVANTHODU, POZHUTHANA, POZHUTHANA AMSOM DESOM, WYNAD DISTRICT. 2. N.DILEEPAN, S/O.KARUNAKUARAN VYDIAR, AGED 45 YEARS, KARAVANTHODU, POZHUTHANA, POZHUTHANA AMSOM DESOM, WYNAD DISTRICT. 3. N.NEENA, W/O V.K.MURALEEDHARAN, AGED 39 YEARS, "ASWATHI", VELLOOR AMSOM, POST ATHOLI, KOZHIKODE DISTRICT. 4. PADMAVATHY, W/O LATE SEKHARAN, AGED 72 YEARS, KARAVANTHODU, POST POZHUTHANA, POZHUTHANA VILLAGE, VIA VYTHIRI, POZHUTHANA AMSOM DESOM, WYNAD DISTRICT. 5. SATHEESAN, S/O LATE SEKHARAN, AGED 52 YEARS, KARAVANTHODE, POST POZHUTHANA, AGED 52 YEARS, KARAVANTHODE, POST POZHUTHANA, POZHUTHANA VILLAGE, VIA VYTHIRI, POZHUTHANA AMSOM DESOM, WYNAD DISTRICT. (...2/-) (2) 6. SUSANTH, S/O LATE SEKHARAN, AGED 46 YEARS, KARAVANTHODE, POST POZHUTHANA, POZHUTHANA VILLAGE, VIA VYTHIRI, POZHUTHANA AMSOM DESOM, WYNAD DISTRICT. 7. SHAJEE, S/O LATE SEKHARAN, AGED 42 YEARS (LUNATIC), REPRESENTED BY GUARDIAN AND MOTHER PADMAVATHY, KARAVANTHODE, POST POZHUTHANA, POZHUTHANA VILLAGE, VIA VYTHIRI, POZHUTHANA, POZHUTHANA VILLAGE, VIA VYTHIRI, POZHUTHANA AMSOM DESOM, WYNAD DISTRICT. 8. SUMANGALA, D/O LATE SEKHARAN, AGED 50 YEARS, PONNARAKANDIYIL HOUSE, POST NADAVATHOOR, VIA KOYILANDY, KOYILANDY TALUK, KOZHIKODE DISTRICT. 9. SHEELA V.K., D/O LATE SEKHARAN, AGED 48 YEARS, PADIYIL HOUSE, MATTANNOOR, POST THALASSERY, THALASSERY TALUK, KANNUR DIST. 10. SHEENA V.K., D/O LATE SEKHARAN, AGED 40 YEARS, KOTTAYIL HOUSE, POST KUDAKALAM, VIA ERANJOLI, THALASSERY TALUK, KANNUR DIST. 11. MUKUNDAN VYDIAR, S/O ACHUTHAN, AGED 86 YEARS, ACHUTHAPURAM, POST DHARMADAM, THALASSERY TALUK, KANNUR DISTRICT. 12. LAKSHMI A.P., D/O LATE ACHUTHAN, AGED 92 YEARS, CHERAPARAMBIL HOUSE, MATTANNOOR, POST NEDUMBRAM, CHOCKLI, VIA THALASSERY, KANNUR DISTRICT. 13. PADMINI.A.P., D/O LATE ACHUTHAN, AGED 76 YEARS, NEETTARATH HOUSE, POST PANNIYANNOOR, VIA CHOCKLI, THALASSERY TALUK, KANNUR DISTRICT. 14. SULOCHANA, D/O LATE ACHUTHAN, AGED 72 YEARS, NEETTARATH HOUSE, POST PANNIYANNOOR VIA CHOCKLI, THALASSERY TALUK, KANNUR DISTRICT. 15. "THE BEST" (A FIRM) CARRYING ON BUSINESS IN S.M.STREET, CALICUT. 16. ABDUL RAUF, S/O K.AHAMMED KUNHI, AGED 47 YEARS, SOUBHAGYA, BHAJANAKOLI ROAD, CHALAPPURAM, KOZHIKODE-2. (...3/-) (3) 17. C.K.ROSHAN, S/O K.P.UMMER KUNHI, AGED 43 YEARS, SOUBHAGYA, BHAJANAKOLI ROAD, CHALAPPURAM, KOZHIKODE-2. 18. C.K.GEETHA, W/O T.K.KRISHNAN, AGED 49 YEARS, "SWAPNA", ATHOLI POST, CALICUT. 19. U.K.GOPALAN, S/O SAMI, - "MAYAM", AGED 42 YEARS, ATHOLI POST, KOZHIKODE DISTRICT. 20. K.BALARAMAN, S/O.C.K.SAMI,AGED 54 YEARS, C.K.S. CLINIC POST THIRUVAMBADI. 21. V.K.MURALEEDHARN, S/O V.K.SAMI, AGED 50 YEARS, KELOTH HOUSE, ATHOLI POST, KOZHIKODE TALUK. 22. K.KRISHNAN, S/O LATE SAMI, AGED 60 YEARS KELOTH HOUSE, ATHOLI POST, KOZHIKODE TALUK. 23. K.SHAMEERA, W/O C.K.ABDUL RAUF, AGED 41 YEARS, SOUBHAGYA, CHALAPPURAM, KOZHIKODE - 2. 24. K.ANIL KUMAR, S/O LATE V.K.SAMI, AGED 37 YEARS, KOLLOTH HOUSE, ATHOLI POST, KOZHIKODE TALUK. 25. "LAVAS", A FIRM CARRYING ON BUSINESS IN VYAPARA BHAVAN, BANK ROAD, CALICUT. 26. C.K.RASIYA, W/O MUHAMMED, AGED 45 YEARS, SOUBHAGYA, CHALAPPURAM, KOZHIKODE-2. 27. RAHILA, W/O C.K.ROSHAN, AGED 46 YEARS, SOUBHAGYA, CHALAPPURAM, KOZHIKODE-2. 28. HYMAVATHY ALIAS LALITHA,D/O LATE ACHUTHAN, AGED 62 YEARS, MANAKANDY HOUSE, POST NARIPATA, VIA KALLACHI. 29. C.M.MAMMOOTY, S/O SOOPY, AGED ABOUT 55 YEARS, PANNIYANNOOR AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT. 30. K.APPUKUTTAN NAIR, (FATHER'S NAME NOT KNOWN TO THE PLAINTIFF) AGED ABOUT 65 YEARS, PWD CONTRACTOR, RESIDING IN AMBIKALAYAM, NEAR THURAYIL BHAGAVATHY TEMPLE, KARANTHUR POST, VIA KUNNAMANGALAM, KOZHIKODE DISTRICT. (...4/-) (4) 31. CHOCKLI SERVICE CO-OPERATIVE BANK LTD., REPRESENTED BY ITS SECRETARY, POST PANNIYANNOOR, VIA CHOCKLI, THALASSERY TALUK, KANNUR DISTRICT. 32. PANNIYANNUR SERVICE CO-OPERATIVE BANK LTD. REPRESENTED BY ITS SECRETARY, POST PANNIYANNOOR, VIA CHOCKLI, THALASSERY TALUK, KANNUR DISTRICT. 33. KAKKATTIL RURAL CO-OPERATIVE BANK LTD. REPRESENTED BY ITS SECRETARY, POST KAKKATTIL, VATAKARA TALUK, KOZHIKODE DISTRICT. 34. POZHUTHANA SERVICE CO-OPERATIVE BANK LTD., REPRESENTED BY ITS SECRETARY, POST POZHUTHANA, VYTHIRI TALUK, WYNAD DISTRICT. 35. SOUTH MALABAR GRAMEENA BANK LTD., REPRESENTED BY ITS MANAGER, POST POZHUTHANA, VIA VYTHIRI, WYNAD DISTRICT. 36. CANARA BANK REPRESENTED BY ITS MANAGER, POST CHUNDALA, VIA VYTHIRI, WYNAD DISTRICT. 37. LORD KRISHNA BANK LTD. KOZHIKODE REPRESENTED BY ITS MANAGER, PARAMOUNT TOWERS, CALICUT. 38. "THE STAR" ( A FIRM) CARRYING ON BUSINESS NEAR NATIONAL HOSPITAL, MAVOOR ROAD, CALICUT. 39. KOYENCO BAZAR (A FIRM) REPRESENTED BY AND ACTING THROUGH ITS PARTNER P.P.KOYA, S/O.MOIDEEN KOYA, AGED 67 YEARS, RESIDING AT PONNAMPARAMBATH, CHEVAYUR AMSOM DESOM, KOZHIKODE TALUK. 40. MESSRS SHABEELA ENTERPRISES(A FIRM) REPRESENTED BY AND ACTING THROUGH ITS PARTNER P.O.KOYA, RESIDING AT PONNAMPARAMBATH, CHEVAYUR AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN FOR R2 SRI.P.A.HARISH FOR R2 SRI.P.V.JYOTHI PRASAD FOR R11 SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 SRI.S.R.DAYANANDA PRABHU FOR R37 SRI.K.K.JAYARAJ NAMBIAR FOR R33 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **PETITIONER’S EXHIBITS:-** - EXT.P1:TRUE COPY OF THE PLAINT IN O.S.153/2005 ON THE FILE OF 2[ND] ADDITIONAL SUB JUDGE, KOZHIKODE. - EXT.P2:TRUE COPY OF THE WRITTEN STATEMENT DELIVERED BY THE 1[ST] DEFENDANT - EXT.P3:TUE COPY OF THE WRITTEN STATEMENT DELIVERED BY THE 2[ND] DEFENDANT - EXT.P4:TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION IN I.A.2408/2007 - EXT.P5:TRUE COPY OF THE PETITION I.A.2408/2007 - EXT.P6:TRUE COPY OF COUNTER STATEMENT FILED BY 1[ST] RESPONDENT OPPOSING P5 - EXT.P7:TRUE COPY OF COUNTER STATEMENT FILED BY 2[ND] RESPONDENT OPPOSING P5 - EXT.P8:TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF IA 2409/2007 - EXT.P9:TRUE COPY OF THE PETITION IA 2409/2007 - EXT.P10:TRUE COPY OF COUNTER STATEMENT FILED BY 1[ST] RESPONDENT OPPOSING P9 - EXT.P11:TRUE COPY OF THE COUNTER STATEMENT DELIVERED BY THE 2[ND] RESPONDENT OPPOSING P9 - EXT.P12:TRUE COPY OF THE ORDER DT.19.7.2007 - EXT.P13:TRUE COPY OF THE AFFIDAVIT FOR THE 2[ND ] DEFENDANT UNDER ORDER XVIII RULE 4 OF CPC TOWARDS CHIEF EXAMINATION ## **RESPONDENTS’ EXHIBITS:-** NIL Okb/- //TRUE COPY// P.A. TO JUDGE ## **M. SASIDHARAN NAMBIAR, J.** -----------------------------------------W.P(C). NO. 22593 OF 2007 -----------------------------------------Dated this the 15[th] day of July, 2008 ## **JUDGMENT** Plaintiff in O.S. 153 of 2005 on the file of Sub Court, Kozhikode, daughter of late Karunakaran Vydiar, is the petitioner. This petition is filed under Article 227 of Constitution of India challenging Ext.P12 order whereunder learned Sub Judge dismissed I.A. 2408 of 2007 and 2409 of 2007, the two applications filed by petitioner, one to pass a preliminary decree straight and the other to defer crossexamination of DW1 till the preliminary decree is passed. 2. Suit is one for administration of assets of the deceased Karunakaran Vydiar. The case of the petitioner in the plaint is that administration of assets of the estate of deceased Karunakaran Vydiar is necessary as there are liabilities to be discharged and the assets which will be available after clearing the debts are to be divided in between the legal heirs. When the suit was included in the special list and taken up, petitioner reported ‘no evidence’. DW1 was examined on the side of the defendants. After closing the chief examination the supporting 2 WPC 22593/07 defendants cross-examined, on the request of petitioner suit was adjourned for cross-examination of DW1 plaintiff filed the applications. Case of the petitioner is that in an administration suit Court need not decide the assets and liabilities before a preliminary decree is passed and as provided under Rule 13 of Order XX of Code of Civil Procedure a preliminary decree is to be passed and all these aspects are to be decided only at the final decree stage. It is for that purpose cross-examination of DW1 by the plaintiff was sought to be deferred till a preliminary decree is passed. Petitioner sought for passing a preliminary decree straight away which was rejected by the learned Sub Judge under Ext.P12 order. 3. Learned counsel appearing for petitioner and respondents were heard. 4. Learned counsel appearing for petitioner relying on Rule 13 of Order XX of the Code of Civil Procedure argued that as distinct from Rule 15, Code contemplates that a preliminary decree shall be passed before a final decree and under Rule 15 a preliminary decree may be passed before passing a final decree declaring the proportionate share of the parties and therefore under Rule 13 Court shall pass a preliminary decree 3 WPC 22593/07 and the preliminary decree should be in Form No.17 of Appendix D and before passing of the preliminary decree details of the assets or liabilities are to be ascertained. Learned counsel placed reliance on the observation of a learned Single Judge of the High Court in **Ollur Bank Ltd. v. Little Flower Bank Ltd.** **(AIR 1954 Travancore-Cochin 399)** . The portion of the judgment relied upon by the learned counsel reads:- “Appendix D, Form No.17 is the form in which a preliminary decree in an administration suit should be drawn up. According to that form there should be a provision in the preliminary decree for an inquiry as to what immovable property the deceased was seized of or was entitled to at the time of his death. (Vide paragraph 10). It is clear from this that it is after the passing of the preliminary decree that the Court should enquire into the question as to what were the assets the deceased person was entitled to at the time of his death” Learned counsel stressed on the observation that it is after passing of the preliminary decree that the Court should enquire 4 WPC 22593/07 into the question as to what were the assets of the deceased person at the time of his death and argued that it implies that a preliminary decree is to be passed before considering the other aspects. Reliance was also placed on the decision of a learned single Judge of Andhra Pradesh High Court in **Masireddi Suryanarayana v. Akula Anasuyamma (AIR 1963 Andhra Pradesh 298).** 5. Learned counsel appearing for respondents relied on the decision of Division Bench of this Court in **K.K. Thankappan v. K.S. Jayan (AIR 2003 Kerala 114)** where the scope of an administration suit was elaborately considered. Analyzing previous decisions of various High Courts, learned counsel appearing for petitioner submitted that if the argument of petitioner is to be accepted as and when a suit is instituted with nomenclature, suit on administration, even without a written statement is filed, a preliminary decree is to be passed which cannot be the law. It was pointed out that Rule 13 only provides that in a suit for administration before passing the final decree, Court shall pass a preliminary decree and not that Court shall pass a preliminary decree in all cases without considering whether suit for administration is maintainable. 5 WPC 22593/07 Under Rule 15 of Order XX of the Code of Civil Procedure, a preliminary decree may be passed before passing of the final decree. It is because a composite decree could be passed without first passing a preliminary decree in a suit on mortgage which is not possible in a suit for administration as provided under Rule 13 of Order XX of the Code. 6. It cannot be said that before considering the very maintainability of a suit on administration, Court is to pass a preliminary decree relegating all other questions to the final decree proceedings as canvassed by the petitioner. Even though the details of assets could be decided at the final decree stage, question whether a suit on administration will lie or not is definitely to be decided before a preliminary decree is to be passed. In such circumstances I do not find any reason to interfere with Ext.P12 order passed by learned Sub Judge. Learned Sub Judge is therefore directed to proceed with the suit. Petitioner is also entitled to cross-examine DW1. 7. Learned counsel appearing for petitioner submitted that plaintiff reported ‘no evidence’ as she was under the impression that no evidence is necessary to pass a preliminary decree as under Rule 13 of Order XX of the Code a preliminary WPC 22593/07 6 decree shall be passed before final decree and in such circumstances petitioner may be allowed to adduce evidence. It is for the petitioner to explain to the trial court under what circumstance she has reported that there is no evidence. She can seek permission of the court to adduce evidence. Trial court is at liberty to pass appropriate order if such an application is filed. Writ petition is disposed of as above. ## **M. SASIDHARAN NAMBIAR, JUDGE** Okb/-