P.C. Parukutty and others v. Paruthipattachalil Velayudhan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933** ## **RSA.No. 1019 of 2010 ( )** **-----------------------AS.36/2003 of ADDITIONAL DISTRICT COURT (ADHOC), MANJERI OS.70/1980 of SUB COURT, MANJERI** ## **APPELLANT(S): ------------** **1. P.C.PARUKUTTY, D/O.KALI, RESIDING AT PARUTHIPPATTACHAL PARAMBU,MANJERI AMSOM AND DESOM OF ERNAD TALUK.** **2. P.C.KALI, D/O.KALI,RESIDING AT PARUTHIPPATTACHAL PARAMBU, MANJERI AMSOM AND DESOM OF ERNAD TALUK.** **3. P.C.KAMALAMMA,D/O.KALI,RESIDING AT PARUTHIPPATTACHAL PARAMBU, MANJERI AMSOM AND DESOM OF ERNAD TALUK.** **4. P.C.CHANDRIKA,D/O.KALI,RESIDING AT PARUTHIPPATTACHAL PARAMBU, MANJERI AMSOM AND DESOM OF ERNAD TALUK.** **5. P.C.GOPALAN, D/O.KALI,RESIDING AT PARUTHIPPATTACHAL PARAMBU, MANJERI AMSOM AND DESOM OF ERNAD TALUK.** **6. P.C.GOVINDHAN,D/O.KALI,RESIDING AT PARUTHIPPATTACHAL PARAMBU, MANJERI AMSOM AND DESOM OF ERNAD TALUK.** **7. P.C.SARIGINI,D/O.KALI,RESIDING AT PARUTHIPPATTACHAL PARAMBU, MANJERI AMSOM AND DESOM OF ERNAD TALUK.** **8. P.C.SHOBHANA,D/O.KALI,RESIDING AT PARUTHIPPATTACHAL PARAMBU, MANJERI AMSOM AND DESOM OF ERNAD TALUK.** - **BY ADVS.SMT.PRABHA R.MENON** - **SRI.M.KRISHNAKUMAR** **RSA.No. 1019 of 2010 ( )** ## **RESPONDENT(S)/RESPONDENT/RESPONDENTS/PETITIONER AND RE:** ## **-------------------------------------------------------** **1. PARUTHIPATTACHALIL VELAYUDHAN, S/O.MADHAVANKUTTY, MANJERI AMSOM, AND DESOM ERNAD TALUK.** **2. PARUTHIPATTACHALIL MURALEEDHARAN, S/O.MADHAVANKUTTY, MANJERI AMSOM, AND DESOM ERNAD TALUK.** **3. PARUTHIPATTACHALIL SURESH KUMAR, S/O.MADHAVANKUTTY, MANJERI AMSOM, AND DESOM ERNAD TALUK.** **4. CHAKKIKUTTY @ RAHDA, W/O.PARUTHIPATTACHALIL MADHAVANKUTTY, MANJERI AMSOM AND DESOM,ERNAD TALUK.** **5. PARUTHIPATTACHALIL SARASWATHY, D/O.MADHAVANKUTTY, MANJERI AMSOM, AND DESOM ERNAD TALUK.** **6. PARUTHIPATTACHALIL SOBHANA, D/O.MADHAVANKUTTY, KALATHILPADY NEAR RATION SHOP P.O., PULPATTA, MALAPPURAM.** **7. PARUTHIPATTACHALIL VASANTHAKUMARI, D/O.MADHAVANKUTTY, MANJERI AMSOM AND DESOM OF ERNAD TALUK.** **8. PARUTHIPATTACHALIL PADMINI, D/O.MADHAVANKUTTY, MANJERI AMSOM AND DESOM OF ERNAD TALUK.** **9. PARUTHIPATTACHALIL SAJITHA, D/O.MADHAVANKUTTY, MANJERI AMSOM AND DESOM OF ERNAD TALUK.** - **R1 TO R4 BY SRI.K.V.SOHAN BY SRI.K.DILIP** - **R5 TO R9 BY SRI.K.V.SOHAN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13-02-2012, ALONG WITH RSA. 1266/2010, RSA. 94/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA** **THOMAS P. JOSEPH, J. ---------------------------------------------------------RSA Nos. 1019/2010, 1266/2010 & 94/2012 ---------------------------------------------------------Dated this the 13[th] day of February, 2012** ## **J U D G M E N T** Appellants are the legal representatives of Kali and Kalliani, the two daughters of one Karikutty who died before the Hindu Women's Right to Property Act came into force. Respondents are the sons of late Madhavankutty, the only son of the said Karikutty. 2. The suit property was acquired by Karikutty. After the death of Karikutty, SM proceeding was initiated in the Land Tribunal (for short, “the Tribunal”) for assignment of the landlord's right in respect of the suit property. Madhavankutty, the father of respondents raised contention that he is the sole tenant of the said property by virtue of a renewal lease. The Tribunal, however, found that the renewal of lease was for and on behalf of the family and issued purchase certificate in favour of Kali, Kalliani and Madhavnkutty. Kali and Kalliani filed OS No:100 of 1978 for RSA Nos. 1019/2010, 1266/2010 & 94/2012 **==> picture [20 x 8] intentionally omitted <==** partition and separate possession of their 1/3[rd] share each. Madhavankutty remained ex-parte. A preliminary decree was passed on 07.08.1980 allotting 1/3 share each to Kali, Kalliani and Madhavankutty. Learned Senior Advocate for the appellants stated that pursuant to that decree, there was a division of the property, the sharers took possession of their respective shares, constructed buildings and started residence there. 3. While so, respondents (sons of Madhavankutty) filed OS No:70 of 1980 for partition of the suit property claiming that along with their deceased father (Madhavankutty), they are coparceners of the suit property since the parties were following the Mithakshara Law of Succession. Kali and Kalliani were impleaded as defendants in that suit (later they died and their legal representativesappellants were brought on record). In that case, the Court passed a preliminary judgment and decree for partition as pleaded by the respondents in supersession of the judgment RSA Nos. 1019/2010, 1266/2010 & 94/2012 **==> picture [20 x 8] intentionally omitted <==** and decree in OS No:100 of 1978. It is not in dispute that appellants challenged that judgment and decree in appeal and second appeal, but failed. Later, respondents filed IA No:1959 of 1993 in OS No: 70 of 1980 to pass a final decree in terms of the preliminary decree. The preliminary decree had recognised the right of respondents for 1/4 share each along with their deceased father, Madhavankutty, while Kali and Kalliani were found to have no right in the suit property. That application for passing the final decree was allowed. Appellants challenged that order in AS No: 30 of 2003, but failed. RSA 1019 of 2010 arises from the judgment and decree in AS No: 30 of 2003. 4. In the meantime, appellants (legal representatives of Kali and Kalliani) claiming right in the property filed OS No: 73 of 1994 for declaration of their right, title interest in the suit property and for prohibitory injunction against their forcible eviction. That suit was dismissed. Appellants challenged the dismissal in AS No: 108 of 2003. That RSA Nos. 1019/2010, 1266/2010 & 94/2012 **==> picture [20 x 8] intentionally omitted <==** appeal also was dismissed. That is under challenge in RSA No:1266 of 2010. 5. Notwithstanding the decree in OS No: 70 of 1980 as confirmed by this Court in SA No: 5 of 1986, appellants filed application in OS No:100 of 1978 to pass a final decree basing their right in the purchase certificate issued by the Tribunal in the SM proceeding referred to above and the preliminary decree in OS No: 100 of 1978. That application was dismissed and the appeal arising therefrom - AS No:44 of 2007 - was also dismissed. That is under challenge in RSA No:94 of 2012. 6. Learned Senior Advocate for the appellants contended that notwithstanding the decree in OS No: 70 of 1980 as confirmed by the appellate court and this Court in SA No: 5 of 1986, the right of respondents and their predecessors in interest - Kali and Kalliani, pursuant to the the purchase certificate issued by the Tribunal in the SM proceeding referred to above would stand under Section RSA Nos. 1019/2010, 1266/2010 & 94/2012 **==> picture [20 x 8] intentionally omitted <==** 72K of the Kerala Land Reforms Act (for short “the Act”). Appellants and their predecessors in interest continued to have right in the suit property which has to be recognised even in the final decree proceedings in OS No: 70 of 1980. It is further contended that the expression “supersession” only means “repeal” and hence the right of appellants and their predecessors in interest in the suit property recognized by the Tribunal in the SM proceeding would stand notwithstanding that the judgment and decree in OS No: 100 of 1978 were superseded or repealed. According to the learned senior advocate, the right of appellants as aforesaid has to be recognized and upheld by the Court notwithstanding that the preliminary decree in OS No: 70 of 1980 became final. Reliance is placed on the decisions in **State of Orissa v. Titaghur Paper Mills Co. Ltd. (AIR 1985 SC 1293) Union of India v. Glaxo India Ltd. ((2011) 6 SCC 668) and Prema v. Nanje Gowda & others ((2011) 6 SCC 462).** RSA Nos. 1019/2010, 1266/2010 & 94/2012 **==> picture [20 x 8] intentionally omitted <==** 7. Learned counsel for respondents who appeared on the notice issued on these appeals before admission contended that the argument advanced by the learned Senior Advocate cannot be entertained for the reason that such a contention was raised in OS No: 70 of 1980 and found against by the courts including this Court in SA No: 5 of 1986. Learned counsel has referred me to the relevant paragraphs of the judgment of this Court in SA No: 5 of 1986. 8. Facts which are not in dispute are that the property was acquired by Karikutty and he was survived by his only son, Madhavankutty and two daughters - Kali and Kalliani. After the death of Karikutty, purchase certificate was issued to Madhavankutty, Kali and Kalliani in the SM proceeding. In OS No: 100 of 1978 with Madhavankutty remaining ex-parte, a preliminary decree for partition was passed allotting 1/3 shares each to Kali and Kalliani. Respondents who are the sons of Madhavankutty were not RSA Nos. 1019/2010, 1266/2010 & 94/2012 **==> picture [20 x 8] intentionally omitted <==** parties to that suit. Claiming that the parties are governed by the Mithakshara Law of Succession and hence only the male children have right in the property, respondents filed OS No: 70 of 1980 and obtained a preliminary decree for partition with Kali and Kalliani and/or their legal representatives arrayed as defendants. That preliminary decree became final by the judgment of this Court in SA No: 5 of 1986. 9. Now the question is whether appellants being the legal representatives of Kali and Kalliani in whose favour also purchase certificate was issued in SM proceeding can claim right over the property by virtue of the purchase certificate issued by the Tribunal? In **Prema v. Nanje Gowda & others** , the Supreme Court held that even after a preliminary decree is confirmed in appeal, it does not become final till the passing of final decree and if during interregnum, right and shares of the parties are altered, for example by virtue of a statutory amendment (which RSA Nos. 1019/2010, 1266/2010 & 94/2012 **==> picture [20 x 8] intentionally omitted <==** obviously took place after the preliminary decree was passed), then the share is required to be allotted to the surviving parties, which can be done in the final decree proceedings. 10. In **State of Orissa v. Titaghur Paper Mills Co. Ltd. and Union of India v. Glaxo India Ltd.,** meaning of the expression “supersession” is stated as “repeal” and, it is held that rights that have accrued until such repeal would remain notwithstanding such repeal. 11. The whole argument is based on the decision of the Tribunal in the SM proceeding which I have stated above. It is interesting to note that in SA No: 5 of 1986 arising from the judgment and decree of the first appellate court confirming the preliminary judgment and decree in OS No: 70 of 1980, a plea based on the decision of the Tribunal was raised and this Court held that the right of the respondents is not affected by the issue of purchase certificate (referred to above) since by that certificate only RSA Nos. 1019/2010, 1266/2010 & 94/2012 **==> picture [20 x 8] intentionally omitted <==** concerned the right of the landlord and intermediary which was vested in the Government. It was further held that the certificate itself will not enable the appellants to claim right and that since respondents are found to be co-owners, the certificate has to enure to the benefit of the co-owners. It is specifically held that appellants cannot make any claim (in the property) on the strength of the purchase certificate. That finding has become final, it is not disputed. Hence, appellants cannot justifiably contend in these proceedings that they have right in the property pursuant to the purchase certificate issued by the Tribunal in the SM proceeding. 12. Moreover, the preliminary judgment and decree in OS No: 70 of 1980 have attained finality and no question of altering the shares on account of any subsequent event is involved. In view of the judgment and decree in OS No: 70 of 1980, appellants cannot fall back on the certificate issued by the Tribunal. The decisions relied by the learned Senior RSA Nos. 1019/2010, 1266/2010 & 94/2012 **==> picture [26 x 8] intentionally omitted <==** Advocate in the above facts and circumstances, have no application. It follows that the trial court was justified in allowing IA No:1959 of 1993 and passing a final decree in OS No: 70 of 1980. 13. In view of the preliminary judgment and decree in OS No: 70 of 1980 as confirmed by the first appellate court and this Court in SA No: 5 of 1986 where is is specifically held that the preliminary judgment and decree in OS No: 100 of 1978 are superseded, there is no preliminary decree in that case so that appellants' request for passing a final decree in OS No: 100 of 1978 could be entertained. Dismissal of the application for passing final decree in OS No: 100 of 1978 is legal and proper. 14. In the light of the above, right of the parties have to be worked out in tune with the preliminary and final judgment and decree in OS No: 70 of 1980. It follows that appellants could not sustain OS No: 73 of 1994 praying for a declaration of their title and for injunction. OS No: 73 of RSA Nos. 1019/2010, 1266/2010 & 94/2012 **==> picture [26 x 8] intentionally omitted <==** 1994 and the appeal arising therefrom were rightly dismissed. 15. Having heard learned counsel on both sides, and going though the judgments under challenge, I do not find any substantial question of law arising for a decision in these appeals. The second appeals are dismissed. **THOMAS P. JOSEPH, JUDGE** bka/-