P. N. Rajendran v. P. V. Lakshmi Amma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942** ## **OP(C).No.3097 OF 2017(O)** **I.A.4843/2015, 4844/2015, 4845/2015 AND 4846/2015 IN OS 385/1999 OF PRINCIPAL MUNSIFF COURT, PALAKKAD** ## **PETITIONERS:** **1 P.V.LAKSHMI AMMA AGED 66 YEARS, WIFE OF RAJENDRAN, 6/23, SILVER LINE, PUDUPARIYARAM AMSOM, PALAKKAD TALUK, PUDUPARIYARAM P.O., PIN-678731.** - **2 P.R.PRIYA AGED 29 YEARS, 'SILVER LINES' HOUSE, PUDUPPARIYARAM, PALAKKAD.** **3 FEMINA P.R. RESIDING AT 1 CLUAIN NA GREINE,THE BURGERY, DUNGARVAN, CO.WATERFORD, X35 KOO2 (DUBLIN, IRELAND).** - **4 NISHANTH,** **AGED 31 YEARS, SON OF RAJENDRAN, 6/23, SILVER LINE, PUDUPARIYARAM AMSOM,PALAKKAD TALUK, PUDUPARIYARAM P.O., PIN-678731. PETITIONERS 2 & 3 ARE REPRESENTED BY POWER OF ATTORNEY HOLDER-1ST PETITIONER-P.V.LAKSHMI AMMA.** **BY ADVS.** **SRI.S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN SRI.LEGITH T.KOTTAKKAL** ## **RESPONDENT:** ## **P.N.RAJENDRAN** **AGED 67 YEARS, S/O.NEELAKANDAN, PRASANTH NIVAS, MUNDUR AMSOM, PALAKKAD TALUK, PUTHANOOR P.O., PIN-678592.** ## **ADV. SRI.A.R.GANGADAS** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24-09-2020, THE COURT ON 05-10-2020 DELIVERED THE FOLLOWING:** O.P.(C) No.3097/2017 2 ## **R.NARAYANA PISHARADI, J** ************************ O.P.(C) No.3097 of 2017 --------------------------------------------Dated this the 5[th] day of October, 2020 ## **J U D G M E N T** The first petitioner is the wife of the respondent. Petitioners 2 to 4 are the children of the first petitioner and the respondent. 2. The first petitioner instituted the suit O.S.No.385/1999 in the Munsiff's Court, Palakkad for partition of properties. The respondent is the sole defendant in that suit. 3. A preliminary decree was passed in the suit for partition of the plaint schedule properties into two equal shares and allotment of one such share to the first petitioner. 4. The respondent filed appeal as A.S.No.58/2003 in the District Court, Palakkad challenging the preliminary decree passed in the suit. The District Court dismissed the appeal. O.P.(C) No.3097/2017 3 5. The respondent filed second appeal before this Court as R.S.A.No.749/2007 challenging the judgment and decree passed by the courts below. 6. The second and the third petitioners, the children of the first petitioner and the respondent, filed O.P.Nos.994/2006 and 999/2006 in the Family Court, Palakkad against the respondent claiming marriage expenses and maintenance from him. These petitions were allowed by the Family Court. The respondent preferred Mat.A.Nos.493/2009 and 496/2009 before this Court challenging the orders passed by the Family Court. 7. The appeals, R.S.A.No.749/2007 and Mat.Appeal No.493/2009 and 496/2009 were considered together by this Court and the cases were referred to mediation. The disputes between the parties were settled in the mediation and a memorandum of agreement (Ext.P1) was executed by them. 8. The appeals mentioned above were disposed of by this Court by the common judgment (Ext.P2) dated 01.06.2015 in terms of the mediation agreement. This Court set aside the judgments passed by the courts below and disposed of the O.P.(C) No.3097/2017 4 appeals by recording the settlement agreement between the parties. This Court also ordered that the mediation agreement shall form part of Ext.P2 judgment. 9. Petitioners 2 to 4 filed an application as I.A.No.4843/2015 (Ext.P3) in the Munsiff's Court, Palakkad for delivery of the two items of properties shown in the schedule of that application. 10. Petitioners 1 and 4 filed an application as I.A.No.4844/2015 (Ext.P4) in the Munsiff's Court, Palakkad for delivery of the property shown in the schedule of that application. 11. Petitioners 2 and 3 filed an application as I.A.No.4845/2015 (Ext.P5) in the Munsiff's Court, Palakkad for dividing the property shown in the schedule of that application into three equal shares and for allotment of two such shares to them. 12. The fourth petitioner filed an application as I.A.No.4846/2015 (Ext.P6) in the Munsiff's Court, Palakkad for dividing the property shown in the schedule of that application O.P.(C) No.3097/2017 5 into two equal shares and for allotment of one such share to him. 13. As per the common order (Ext.P7) dated 01.06.2017, the Munsiff's Court dismissed Exts.P3 to P6 applications. 14. This original petition is filed under Article 227 of the Constitution of India by the petitioners challenging the legality and propriety of Ext.P7 order. 15. Heard learned counsel for the petitioners and also the respondent. 16. The terms and conditions stated in Clause (3) of Ext.P1 mediation agreement executed by the petitioners and the respondent, which forms part of the decree passed by this Court as per Ext.P2 judgment, are as follows: _“3. The appellant is ready to divide the properties he is having in the following manner._ _a. The house and compound having an extent of 24 cents in Re-Survey No.231/11 and 11 cents in Re-Survey No.231/8 (total 35 cent) of Puthupariyaram No.II Village, Palakkad Taluk, Palakkad District covered by the Title Deed No.2076/91 of SRO, Olavakkod, will be given to his wife Lakshmi Amma and son Nishanth (Son of_ O.P.(C) No.3097/2017 6 _Rajendran and Lakshmi Amma and he is not a party in these proceedings)._ _b. The property situated in Panniyampadom having an extent of 30 Cents in Re-Survey No.237/2 of Mundur-I Village, Palakkad Taluk, Palakkad District covered by the Title Deed No.192/84 of SRO, Parali, will be given to his children Nishanth, Femina and Priya._ _c. The property having an extent of 14 cents in Re-Survey No.133/6 of Kannadi Village, Palakkad Taluk, Palakkad District covered by the Title Deed No.1977/95 of SRO, Kuzhalmannam, will be given to Nishanth, Femina and Priya._ _d. Rubber estate situated in Mundur having an extent of 2.25 Acres Re-Survey No.59/2 of Mundur-1 Village, Palakkad Taluk, Palakkad District covered by the Title Deed No.320/85 of SRO, Parali, will be divided equally among Rajendran, Priya and Femina._ _e. The house and compound having an extent of 98 cents in Re-Survey No.441/2 of MundurII Village, Palakkad Taluk, Palakkad District covered by the Title Deed No.1390/2002 of SRO, Parali, will be divided equally between Rajendran and Nishanth.”_ O.P.(C) No.3097/2017 7 17. The petitioners have not produced before this Court copy of the plaint or the decree passed in the suit O.S.No.385/1999 or the decree passed in the appeal A.S.No.58/2003. Therefore, this Court is not in a position to ascertain whether the properties mentioned in Ext.P1 mediation agreement and the properties which were sought to be partitioned in the suit are the same. 18. No doubt, in the mediation it is always open for the parties to explore the possibility of an overall amicable settlement including the disputes which are not the subject matter of the proceedings before the Court (See **Kaushaliya v. Jodha Ram : 2019 SCC OnLine SC 1511** ). While formulating the terms of the agreement, the disputes, not falling under the case referred to mediation, also can be included, in the absence of any kind of bar against the same. The terms of settlement need not be confined to the rights and liabilities raised by the parties in the referred cases only. It may go beyond the pleadings and reliefs sought for (See **Sethumadhavan v.** **Savitha : 2019 (5) KHC 635** ). O.P.(C) No.3097/2017 8 19. The lower court has stated that the decree passed by this Court in R.S.A.No.749/2007 is a preliminary decree. This observation made by the lower court is not fully correct. 20. Sub-section (2) of Section 2 of the Code of Civil Procedure, 1908 (for short 'the Code') defines a decree as 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. Explanation to this provision states that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of and it is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. 21. Preliminary decree declares the rights and liabilities of the parties. After passing a preliminary decree for partition, the decree cannot be made effective without a final decree. A preliminary decree for partition only identifies the properties to be subjected to partition and defines and declares the O.P.(C) No.3097/2017 9 shares/rights of the parties. Actual division by metes and bounds and allotment is left for being completed in the final decree proceedings. 22. However, in a given case a decree may be both preliminary and final. A decree may be partly preliminary and partly final (See **Rachakonda Venkat Rao v. Satya Bai : AIR 2003 SC 3322** and **Hasham Abbas Sayyad v. Usman Abbas Sayyad : AIR 2007 SC 1077** ). In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court (See **Shub Karan v. Sita Saran : (2009) 9 SCC 689** ). 23. In the instant case, as per clause 3(a) of Ext.P1 mediation agreement, the respondent had agreed to give the property mentioned therein to petitioners 1 and 4. Likewise, as per clauses 3(b) and 3(c) of the agreement, the respondent had agreed that the properties mentioned therein shall be given to petitioners 2 to 4. The mediation agreement forms part of the O.P.(C) No.3097/2017 10 decree passed by this Court as per Ext.P2 judgment. The decree passed by this Court, as far as it relates to the properties mentioned in clauses 3(a) to 3(c) of the mediation agreement, is final. The reason is that nothing more is required to be done to make it effective. 24. Exts.P3 and P4 applications filed by the petitioners are for delivery of the properties mentioned in clauses 3(a) to 3(c) of the mediation agreement. In my view, the petitioners should have filed execution petitions against the respondent seeking proper reliefs to execute that part of the decree which is final. In **Kaushaliya** (supra), the Apex Court has stated as follows: _“In the mediation parties may try for amicable settlement, which is reduced into writing and/or a settlement agreement and thereafter it becomes the part of the Court's Order and the Court disposes of the matter in terms of the settlement agreement. Thereafter the order in terms of the settlement agreement is executable irrespective of the fact whether the settlement agreement is with respect to the properties which was/were not the subject matter of the proceedings before the Court. Thereafter the order passed by the Court in terms of_ O.P.(C) No.3097/2017 11 _the settlement is binding to the parties and is required to be acted upon and/or complied with and as observed above the same is executable”._ 25. At this juncture, it is pertinent to note that, even if no decree has been drafted in the second appeal, it does not prevent the petitioners from filing any execution petition. In **Sir** **Sobha Singh and Sons Private Limited v. Shashi Mohan Kapur : AIR 2019 SC 5416** , the Apex Court has held as follows: _“This takes us to examine the next question, namely, what is the effect of not filing the copy of the decree along with the execution application filed by the appellant. In our view, even though the appellant did not file the certified copy of the decree along with the execution application for the reason that the same was not passed by the Court, yet the execution application filed by the appellant, in our view, was maintainable. Indeed, so long as the formal decree was not passed, the order dated 01.06.2012 was to be treated as a decree during the interregnum period by virtue of Order 20 Rule 6A(2) of the Code. In other words, notwithstanding the fact that the decree had not been passed, yet by virtue of principle underlined_ O.P.(C) No.3097/2017 12 _in Order 20 Rule 6A(2) of the Code, the order dated 01.06.2012 had the effect of a decree till the date of actual passing of the decree by the Court for the purposes of execution or for any other purpose”._ (emphasis supplied). 26. It is also doubtful whether delivery of property to the petitioners could be ordered without any document being executed by the respondent in favour of the petitioners in respect of the properties mentioned in clauses 3(a) to 3(c) of the mediation agreement. The obligation of the respondent under clauses 3(a) to 3(c) of Ext.P1 agreement is only to give the properties mentioned therein to the petitioners. A compromise decree by itself does not create any new right, title or interest in the immovable property, which is not the subject matter of the suit (See **Gopakumar v. Sunitha : 2020 (3) KHC 147** ). 27. Further, the description of the properties given in the schedules of Exts.P3 and P4 applications does not fully tally with the description of the properties mentioned in clauses 3(a) to 3(c) of the mediation agreement. O.P.(C) No.3097/2017 13 28. As per clause 3(d) of Ext.P1 agreement, the property mentioned therein has to be divided equally among petitioners 2 and 3 and the respondent. As per clause 3(e) of the agreement, the property mentioned therein has to be equally divided between the fourth petitioner and the respondent. As far as the properties covered by clauses 3(d) and 3(e) of Ext.P1 agreement, the decree passed by this Court is only a preliminary decree. Final decree has to be passed in respect of these items of properties. 29. Order XXVI Rule 13 of the Code states that, where a preliminary decree for partition has been passed, the Court may, in any case not provided under Section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree. 30. The prayer made in Exts.P5 and P6 applications is to depute the Commissioner to divide the properties concerned in accordance with the decree passed by this Court and to allot the shares due to the petitioners. Therefore, Exts.P5 and P6 are O.P.(C) No.3097/2017 14 really applications filed for passing final decree. 31. True, initiation of final decree proceedings in a suit for partition does not depend upon an application filed for passing final decree. As held in **Shub Karan** (supra), when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed and it is the duty and function of the court. It is not mandatory that a party to the suit shall file application for passing final decree. 32. However, in the instant case, the principle mentioned above, may not strictly apply. The reason is that there is a complete substitution of the preliminary decree for partition passed by the trial court with the decree passed by this Court in the second appeal in terms of the mediation agreement. Moreover, petitioners 2 to 4 were not parties to the suit. Further, as per the preliminary decree passed by this Court, the first petitioner who instituted the suit is not a person who is entitled to get a share in the properties covered by clauses (d) and (e) of the mediation agreement. Therefore, it may not be O.P.(C) No.3097/2017 15 possible for the trial court to continue final decree proceedings in the suit without application filed by any of the parties concerned for passing final decree, giving a correct description of the properties which are to be divided. 33. The affidavit filed in support of Ext.P5 application is sworn to by the first petitioner in her capacity as the power of attorney holder of the second and the third petitioners. However, in the cause title of Ext.P5 application, the name of the applicant shown is that of the first petitioner, that too, in her individual capacity. The cause title of Ext.P5 application does not show that the application is filed by the first petitioner in her capacity as the power of attorney holder of the second and the third petitioners. Further, the description of the properties given in the schedule of Ext.P5 application does not fully tally with the description of the properties given in clause 3(d) of Ext.P1 agreement. 34. As far as Ext.P6 application is concerned, the affidavit in support of that application is sworn to by the fourth petitioner who is entitled to get half share of the property covered by clause 3(e) of Ext.P1 agreement. But, the name of the applicant O.P.(C) No.3097/2017 16 shown in that application is not that of the fourth petitioner but it is of the first petitioner who is his mother, who is not entitled to get any share in that property. 35. The lower court has stated that petitioners 2 to 4, who were not originally parties to the suit, have to get impleaded in the suit and the plaint has to be amended. It is not necessary for petitioners 2 to 4 to get themselves impleaded in the suit and to take any steps for amendment of the plaint. Though not formally impleaded in the second appeal by this Court, by virtue of the judgment passed by this Court, they shall be deemed to have become parties to the second appeal. It is only necessary for petitioners 2 to 4 to file proper applications seeking appropriate reliefs either in execution or on the original side. 36. In the aforesaid circumstances, especially in view of the defects in Exts.P3 to P6 applications, I find it not proper to interfere with Ext.P7 order passed by the trial court dismissing those applications. 37. Consequently, the original petition is disposed of as follows: The prayer for setting aside Ext.P7 order is rejected. O.P.(C) No.3097/2017 17 However, the petitioners are at liberty to file proper applications in the court below seeking proper reliefs. It is made clear that it is not necessary for petitioners 2 to 4 to get impleaded in the suit and to take steps for amendment of the plaint. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(C) No.3097/2017 18 ## **APPENDIX** **PETITIONERS' EXHIBITS:** - **EXHIBIT P1** **COPY OF AGREEMENT BETWEEN THE PARTIES HERETO DATED 15.01.2015.** - **EXHIBIT P2** **COPY OF THE JUDGMENT DATED 01.06.2015 IN R.S.A. 749/2007 OF THE HIGH COURT OF KERALA.** - **EXHIBIT P3 COPY OF THE PETITION I.A.4843/2015 IN O.S.385/1999 OF THE MUNSIFF'S COURT, PALAKKAD.** - **EXHIBIT P4 COPY OF THE PETITION I.A.4844/2015 IN O.S.385/1999 OF THE MUNSIFF'S COURT, PALAKKAD.** - **EXHIBIT P5 COPY OF THE PETITION I.A.4845/2015 IN O.S.385/1999 OF THE MUNSIFF'S COURT, PALAKKAD.** - **EXHIBIT P6 COPY OF THE PETITION I.A.4846/2015 IN O.S.385/1999 OF THE MUNSIFF'S COURT, PALAKKAD.** - **EXHIBIT P7 COPY OF THE COMMON ORDER DATED 01.06.2017 IN I.A.4843,4844,4845 AND 1846 OF 2015 IN O.S.385/1999 OF MUNSIFF'S COURT, PALAKKAD.** ## **RESPONDENT'S EXHIBITS: NIL** **TRUE COPY** **PS TO JUDGE**