P. Purushothaman v. P. Sarojini and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933** **OP(C).No. 3031 of 2011(O)** **--------------------------------------** **IA.740/1994 IN OS.213/1991 of MUNSIFF COURT,VARKALA** **....................** ## **REVISION PETITIONER/PETITIONER/PLAINTIFF** **---------------------------------------------------------------------** **P. PURUSHOTHAMAN, PRASADAM VEEDU, CHILAKKOR DESOM, VARKALA VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.M.R.RAJESH** ## **RESPONDENTS/COUNTER PETITIONERS 1, 2 & 4 TO 9/DEFENDANTS 1,2 & 4 TO 9** **-----------------------------------------------------------------------------------------------------------------------** **1. P. SAROJINI, KATTIL VEEDU, VEEDU, CHILAKKOR DESOM, VARKALA VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT.** **2. P. VANAJAKSHI, PRASADAM VEEDU, CHILAKKOR DESOM, VARKALA VILLAGE, -DO- -DO-** **3. R. BAHULEYAN, VETTOORVILA VEEDU, VETTOOR DESOM, VETTOR VILLAGE, -DO- -DO-** **4. R.DHARMASEELAN, -DO- -DO-** **5. R. SASANKAN, -DO- -DO-** **6. R. KANAKANGI, -DO- -DO-** **7. R. SUSEELA, PANTHUVILA VEEDU, AYANTHI, CHERUNNIYOOR VILLAGE, -DO- -DO-** ***8. P. SIVADASAN, SARALA MANDIRAM, CHILAKKOOR DESOM, VARKALA VILLAGE, -DO- -DO- *(DIED)** **(THE 3RD COUNTER PETITIONER/3RD DEFENDANT SHOWN IN THE CAUSE TITLE OF THE IMPUGNED ORDER IS NO MORE & COUNTER PETITIONERS 4 TO 8/DEFENDANTS 4 TO 8 ARE HER LEGAL REPRESENTATIVES WHO ARE ALREADY IN THE PARTY ARRAY.)** **OP(C).No. 3031 of 2011(O)** ## *** ADDL. R9 TO R13 IMPLEADED** **ADDL. R9: K.G. SAROJINI, W/O.LATE SIVADASAN, SARALA MANDIRAM, CHILAKKOOR DESOM, VARKALA VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **ADDL. R10: SARALAMANI, D/O.LATE SIVADASAN, SARALA MANDIRAM, CHILAKKOOR DESOM, VARKALA VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **ADDL. R11: SHEELA, D/O.LATE SIVADASAN, SARALA MANDIRAM, CHILAKKOOR DESOM, VARKALA VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **ADDL. R12: LATHIKA, D/O.LATE SIVADASAN, SARALA MANDIRAM, CHILAKKOOR DESOM, VARKALA VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **ADDL. R13: SHAJI, S/O.LATE SIVADASAN, SARALA MANDIRAM, CHILAKKOOR DESOM, VARKALA VILLAGE, THIRUVANANTHAPURAM DISTRICT.** *** ADDL. RESPONDENTS 9 TO 13 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 8TH RESPONDENT, AS PER ORDER DATED 19/08/2011 IN I.A.83/2008.** **R7 BY ADV. SRI.C.R.SIVAKUMAR. ADDL.R9 TO R11 BY ADV. SRI.R.ANILKUMAR.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.3031 of 2011 ==================================== Dated this the 13[th] day of October, 2011** ## **J U D G M E N T** It started as a suit for partition – O.S. No.213 of 1991 filed by the petitioner in the court of learned Munsiff, Varkala. He demanded partition and separate possession of his 2/15 shares in the suit property. The 2[nd] respondent-2[nd] defendant claimed her share and separate possession and paid court fee for the same. It is said that the 8[th] respondent/9[th] defendant who had 5/15 shares in the suit property transferred his right to the 1[st] respondent-1[st] defendant as per registered gift deed No.500 of 1975. Learned Munsiff passed a preliminary decree on 28.01.1993 allotting shares as pleaded by petitioner and other defendants. After the preliminary decree was passed, it is claimed by petitioner that he acquired the 5/15 shares of the 1[st] respondent-1[st] defendant (which 1[st] respondent got as per the gift deed in question) as per sale deed No.1074 of 1994 dated 21.03.1994. Petitioner filed I.A. No.740 of 1994 to pass a supplementary preliminary decree taking note of the 5/15 shares he acquired from the 1[st] respondent-1[st] defendant who acquired it from the 8[th] respondent-9[th] defendant. Application was resisted by the **O.P(C) No.3031 of 2011** ## -: 2 :- contesting defendants. The 8[th] respondent-9[th] defendant denied execution of the gift deed in favour of the 1[st] respondent1[st] defendant. Learned Munsiff recorded evidence on I.A. No.740 of 1994 (I am told that since execution of gift deed was denied by the 8[th] respondent-9[th] defendant, document was sent to the Expert for opinion on the thump impression and the Expert gave a report that the thump impression appearing in the gift deed is that of the 8[th] respondent-9[th] defendant). Learned Munsiff heard I.A. No.740 of 1994 and came out with order dated September 20, 2002 holding that the claim made by the petitioner is not required to be adjudicated in an application for passing a supplementary preliminary decree since execution of the gift deed is denied by the 8[th] respondent-9[th] defendant. Learned Munsiff took the view that the dispute is to be settled in a separate suit and dismissed I.A. No.740 of 1994. 2. Petitioner challenged that order in C.R.P. No.2443 of 2002. That Civil Revision came before me for hearing on August 19, 2011. Maintainability of the civil revision challenging the correctness of the order refusing to pass a supplementary preliminary decree was canvassed. Learned counsel for contesting respondents argued that the Civil Revision is not **O.P(C) No.3031 of 2011** ## -: 3 :- maintainable and the remedy available to the petitioner was by way of appeal treating the order refusing to pass supplementary preliminary decree as a decree as defined in Section 2(2) of the Code of Civil Procedure. Learned counsel placed reliance on various authorities. 3. When faced with the above situation, learned counsel for petitioner pointed out that it is within the power of this Court to convert the Civil Revision into a Petition under Article 227 of the Constitution. Learned counsel contended that since the order passed by the learned Munsiff is apparently illegal and since so many years have passed by after the impugned order was passed it is unjust to direct petitioner to file a separate appeal which involve huge delay and asking him to find out explanation for the said delay. Learned counsel placed reliance on certain decisions in support of his contention. 4. After hearing both sides this Court by order dated August 19, 2011 held that having regard to the facts of the case it is only just and proper that petitioner is allowed to convert the Civil Revision into an Original Petition under Article 227 of the Constitution. Accordingly the Civil Revision was converted as O.P (C) No.3031 of 2011. Now that Original Petition has come up for **O.P(C) No.3031 of 2011** ## -: 4 :- hearing before me this day. 5. The question is whether interference is required with the impugned order. The factual scenario in which learned Munsiff embarked upon an enquiry on I.A.No.740 of 1994 has already been stated. It is not disputed before me that learned Munsiff has recorded evidence on I.A. No.740 of 1994 on the disputed questions including due execution of gift deed No.500 of 1975 by the 8[th] respondent-9[th] defendant. Learned Munsiff came to the conclusion that the dispute is required to be settled in a separate suit and not in application for passing a supplementary preliminary decree. 6. There could be no doubt that in a suit for partition it is within the power of the court to pass any number of supplementary preliminary decree before passing the final decree itself. In this case no final decree is passed. Therefore there can be no dispute regarding the power of court to pass supplementary preliminary decree(s) provided circumstances warranted it. 7. On the question whether circumstances in this case warranted supplementary preliminary decree I have to refer to the dispute involved. The claim of petitioner is that 5/15 shares in **O.P(C) No.3031 of 2011** ## -: 5 :- the suit property 8[th] respondent-9[th] defendant had, was gifted by him to 1[st] respondent-1[st] defendant as per gift deed No.500 of 1975 and that right was purchased by petitioner as per sale deed No.1074 of 1994. The Supreme Court in **Phoolchand v.** **Gopal Lal** (AIR 1967 SC 1470) was considering a similar situation and question whether supplementary preliminary decree could be passed in the suit for partition. There, after the preliminary decree was passed there was a request for passing a supplementary preliminary decree on the basis of augmentation of shares pursuant to certain transactions including the execution of a partition deed and Will after the preliminary decree was passed. Trial court in that case accepted the plea and passed a preliminary decree which was challenged before the High Court. The decision of the High Court was challenged in the Apex Court. In paragraph 7 of the decision it was held: “We are of the 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 ## **O.P(C) No.3031 of 2011** ## -: 6 :- 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 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 to 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. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds **O.P(C) No.3031 of 2011** ## -: 7 :- of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible - and obviously this is so because the High Courts have differed on the question - we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the Court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties.......”. (emphasis supplied) 8. Learned Munsiff tried to distinguish the above ## **O.P(C) No.3031 of 2011** ## -: 8 :- decision on the ground that in the reported case there was no dispute regarding the document in question unlike in the present case. I am not inclined to accept the distinction that learned the Munsiff has made. On a reading of the decision of the Supreme Court referred above, I am not inclined to think that in cases where the documents are disputed parties must be relegated to a separate suit and that the court has power to pass a supplementary preliminary decree only when execution of the documents in question are admitted. 9. In the present case also augmentation of shares is pleaded by the petitioner on the strength of the gift deed and sale deed referred above. The question whether the sale deed relied on by petitioner is valid depends on the question whether 8[th] respondent-9[th] defendant has executed the gift deed in favour of the 1[st] respondent-1[st] defendant. These are certainly matters which arise in the application for passing supplementary preliminary decree. Therefore learned Munsiff was not correct in observing that these matters are not required to be decided in an application for passing a supplementary preliminary decree and that parties must be relegated to a separate suit. That will only result in multiplicity of suits. As observed by the Supreme **O.P(C) No.3031 of 2011** -: 9 :- Court , the issue is required to be decided in I.A.No.740 of 1994 itself. 10. In the view I have taken in the light of the decision of the Apex Court referred above, I must hold that the finding entered by the learned Munsiff is patently not correct. For the said reason also this Court is justified in interfering with the said finding and order in exercise of its supervisory power under Article 227 of the Constitution. I find no reason why I should not invoke that power. 11. But I do not venture to go into the question whether the claim made by petitioner based on the sale deed and gift deed above stated is correct or not and whether petitioner is entitled to get a supplementary preliminary decree. Reason is that the learned Munsiff has not entered a finding on the disputed question. Certainly based on the evidence on record or in case the parties intend to adduce further evidence, based on such evidence also learned Munsiff has to decide on the correctness of the claim made by petitioner in I.A. No.740 of 1994 and based on that finding decide whether petitioner is entitled to get a supplementary preliminary decree as prayed for. Resultantly, Original Petition is allowed as follows: ## **O.P(C) No.3031 of 2011** ## -: 10 :- (a) The impugned order dated September 20, 2002 on I.A. No.740 of 1994 in O.S. No.213 of 1991 is set aside. (b) I.A. No.740 of 1994 is remitted to court of learned Munsiff, Varkala. Learned Munsiff shall decide that application in the light of the observations made above. (c) I make it clear that it will be open to the parties to adduce further evidence if any and if they are so advised (d) Learned Munsiff shall on the evidence on record and to be adduced if any, decide whether petitioner is entitled to get a supplementary preliminary decree as prayed for in I.A. No.740 of 1994. (e) Since the suit is of the year 1991 ## **O.P(C) No.3031 of 2011** ## -: 11 :- learned Munsiff shall expedite the proceeding and dispose of I.A. No.740 of 1994 as early as possible. Parties are directed to appear in the court of learned Munsiff, Varkala on 01.11.2011. ## **THOMAS P. JOSEPH, JUDGE.** vsv