High Court of KeralaSingle Judge2022-09-28Appeal allowed; first appellate decree set asid...

Pushpangadhan and Vilasini v. Ravendran and Mini Ravendran

Case / Petition Number:RSA No. 189 of 2015

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sathish Ninan
Judgment Date: 2022-09-28
Court Decision / Holding: Regular Second Appeal allowed; the decree and judgment of the first appellate Court set aside. The Court shall consider the genuineness of Ext.X1 Will and adjudicate on the devolution of shares of the first plaintiff thereunder. Decree shall be passed taking note of augmentation of shares consequent on the death of the first plaintiff.
Final Disposition: Appeal allowed; first appellate decree set aside; extend adjudication to Ext.X1 Will in the same proceeding; final decree to reflect augmented shares and Will devolution; further proceedings before the trial/appropriate court as directed.

Parties to the Case

Appellants / Petitioners

Pushpangadhan
Vilasini

Respondents

Ravendran
Mini Ravendran

Legal Representation & Advocates

Counsels for Petitioners

• Jacob P. Alex
• Joseph P. Alex

Counsels for Respondents

• K. I. Mayankutty
• P. Rahul

Case Synopsis & Summary

This Regular Second Appeal arises from a partition suit over 1 acre 26 cents with a building, filed by plaintiffs 2 and 3 (Pushpangadhan and Vilasini) challenging the partition decrees. The trial court held that the first plaintiff had a 5/8 share while plaintiffs 2, 3 and the first defendant each had 1/8, with the building allotted to plaintiffs 1 and 3. On appeal, the defendants sought modification of the building allotment; pending the appeal, the parties agreed to include the building in the partition. The first plaintiff died during proceedings; plaintiffs produced a Will (Ext.X1) bequeathing rights to the third plaintiff. The appellate court, however, relegated the Will dispute to a separate suit, rather than adjudicating it within the partition proceedings. The appellants challenge this relegation. The court framed the substantial question: whether devolution of rights between co-sharers occurring during preliminary decree proceedings could be adjudicated in the same proceeding rather than in a separate suit. The court held that devolution of rights and augmentation of shares arising from the death of the first plaintiff could be considered in the preliminary decree proceedings, and substitute or supplementary decrees could be passed. Accordingly, Regular Second Appeal is allowed; the decree of the first appellate court is set aside, Ext.X1’s genuineness must be decided in the same proceeding, and a decree reflecting augmented shares shall be passed. Parties are to appear for further proceedings accordingly.

Legal Doctrines & Maxims

Devolution of rights inter se pending partition suit may be decided in the same proceeding
Supplementary preliminary decree could be passed in partition proceedings

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that devolution of rights among sharers arising during preliminary decree proceedings should be considered in the same suit and not relegated to a separate action. They urged that Ext.X1 will be genuine and admissible within the partition proceeding, and that augmentation of shares due to the death of the first plaintiff must be adjudicated in the same proceeding to preserve final decree coherence.

Contentions of Respondents

The respondents contended that the second plaintiff’s potential conveyance to the first defendant was only an agreement for sale, not a transfer of rights, and that the Will dispute should not be adjudicated in the partition suit, but in a separate proceeding; they urged the appellate court’s relegation as appropriate pending resolution of the Will.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Phoolchand v. Gopal Lal	AIR 1967 SC 1470	Positive	Cited to support the proposition that supplementary preliminary decree could be passed in partition proceedings and devolution of rights may be addressed within the same proceeding.
S. Sai Reddy v. S. Narayana Reddy	(1991) 3 SCC 647	Positive	Cited as authority for addressing devolution of rights within the ongoing proceeding.
Prema v. Nanje Gowda	(2011) 6 SCC 462	Positive	Cited as authority on related principles of devolution of rights and Will adjudication in partition context.
Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr.	(2011) 9 SCC 788	Positive	Cited as authority supporting consideration of rights devolution within proceedings.
Purushothaman P. v. P. Sarojini and Others	2011 (4) KHC 407	Positive	Cited to corroborate the approach to adjudicate related issues in the same suit.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944** **RSA NO. 189 OF 2015** **AGAINST THE JUDGMENT IN AS 36/2008 OF DISTRICT COURT, PATHANAMTHITTA OS 441/2005 OF MUNSIFF COURT, PATHANAMTHITTA** **-----** ## **APPELLANTS/RESPONDENTS 2 AND 3/PLAINTIFFS 3 AND 2:** 1 PUSHPANGADHAN, AGED 57 YEARS, S/O.DAMODARAN, ANEESH BHAVAN, VAYALA VADAKEKKARA, VALLICODE, KOZHENCHERRY, PATHANAMTHITTA. 2 VILASINI, AGED 62 YEARS, W/O.LATE SADANANDAN, CHIRAIKKARA HOUSE, MUNDUKOTTACKAL P.O., PATHANAMTHITTA. BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** 1 RAVEENDRAN, AGED 47 YEARS, S/O.DAMODARAN, MALIYECKAL MURUPPEL VEEDU, PYVALLIBHAGOM, OMALLOOR, PATHANAMTHITTA PIN 689647. 2 MINI RAVEENDRAN, AGED 33 YEARS, W/O.RAVEENDRAN, MALIYECKAL MURUPPEL VEEDU, PYVALLIBHAGOM, OMALLOOR, PATHANAMTHITTA PIN 689647. BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.P.RAHUL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RSA No.189 of 2015** **= = = = = = = = = = = = = = = = = = Dated this the 28[th] day of September, 2022** ## **J U D G M E N T** This appeal is by the plaintiffs 2 and 3 in a suit for partition and injunction. 2. First plaintiff is the father of plaintiffs 2, 3 and the first defendant. The second defendant is the wife of the first defendant. The plaint schedule property is 1 acre and 26 cents with a building thereon. The plaint schedule belonged to the first plaintiff and his wife late Kamalakshi Amma. On the death of Kamalakshi Amma her share devolved on the plaintiffs and the first defendant. Partition is sought in respect of the same. 3. The trial court declared that the first plaintiff is entitled to 5/8 shares and that plaintiffs 2, 3 and the first defendant are entitled for 1/8 shares each. The building in the property was allotted jointly to plaintiffs 1 and 3. **RSA No.189 of 2015** -: 2 :- 4. Aggrieved by the allotment of the building, the defendants filed appeal. Pending the appeal, the parties agreed that the building shall also be subjected to partition. There was no dispute between the parties regarding the extent of shares declared by the trial court. 5. Pending the appeal, the first plaintiff died. Plaintiffs 2 and 3 filed IA 71/2009 producing therewith a Will executed by the first plaintiff. As per the Will the first plaintiff had bequeathed his rights to the third plaintiff. The third plaintiff prayed that his rights as per the Will may also be taken note of and his share declared. The appellate court, without adjudicating on the rights under the Will, relegated the parties to a separate suit to establish the claim under the Will. It is aggrieved thereby that this Regular Second Appeal has been filed by plaintiffs 2 and 3. **RSA No.189 of 2015** -: 3 :- 6. Heard learned counsel on either sides on the following substantial question of law:- “ _Devolution of rights between sharers in a partition suit_ _having taken place pending the preliminary decree proceedings, was it proper for the first appellate court to have relegated the issue of devolution of right to a separate suit.”_ 7. Suit for partition stands disposed of only with the passing of the final decree. Devolution of shares inter se pending the suit is a matter which could be taken note of and considered by the Court. If the devolution is after the passing of the preliminary decree, but before the passing of final decree, supplementary preliminary decree could be passed _**(See Phoolchand v. Gopal Lal [AIR 1967 SC 1470]; S. Sai Reddy v. S. Narayana Raddy (1991) 3 SCC 647, Prema v. Nanje Gowda (2011) 6 SCC 462, Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr. (2011) 9 SCC 788, Purushothaman P. v. P. Sarojini and Others [2011 (4) KHC**_ **RSA No.189 of 2015** -: 4 :- ## _**407 ]).**_ 8. The first plaintiff having died pending the preliminary decree proceedings, the devolution of his rights on the other sharers is a matter which could be considered by the court in the preliminary decree proceedings. Here the third plaintiff claimed to have obtained the shares of the first plaintiff under a Will executed by him. The issue of augmentation of share of the 3[rd] plaintiff, consequent on the demise of the first plaintiff, ought to be decided in the very same suit. The Will was produced by the third plaintiff along with IA 71/2009. The Court proceeded to take evidence regarding the claim under the Will. The Will was marked as Ext.X1. It is a registered Will. The attestors to the Will were examined as PW1 and RW1 respectively. It appears that RW1, one of the attestors, denied his signature on Ext.X1 Will. PW2 is an Advocate, who drafted the Will. PWs.3 and 4 were examined to prove the **RSA No.189 of 2015** -: 5 :- signature of RW1. After having proceeded thus far parties ought not have been relegated to a fresh suit for determination of their rights. The issue ought to have been decided in the very same proceeding. Substantial question of law is answered accordingly. 9. The learned counsel for the respondents contend that the second plaintiff had entered into an agreement for conveyance of her share to the first defendant and the same was mentioned in the appeal memorandum in AS 36/2008. It should be noticed that even according to the respondents it is only an agreement for sale. That by itself does not entitle them to claim that they have acquired the rights of the second plaintiff. 10. As regards proof of Ext.X1 Will, elaborate evidence was taken by the Court. All that remains is hearing and an adjudication thereon. The appellate Court having done the exercise of taking evidence it would be sufficient if the Court decides on the same. **RSA No.189 of 2015** -: 6 :- 11. In the result, the Regular Second Appeal is allowed. The decree and judgment of the first appellate Court is set aside. The Court shall consider the genuineness of Ext.X1 Will and adjudicate on the devolution of shares of the first plaintiff thereunder. Decree shall be passed taking note of the augmentation of shares consequent on the death of the first plaintiff. Parties to appear before the trial court on 26.10.2022. Sd/- **SATHISH NINAN** **JUDGE** kns/- //True Copy// P.S. to Judge **RSA No.189 of 2015** -: 7 :- In the last sentence in the judgment dated 28/09/2022 in RSA 189/2015(E), the words 'trial court' stand corrected as 'first appellate court' and the date for appearance stands refixed as 21/11/2022, as per the order dated 27/10/2022 in I.A. 1/2022 in RSA 189/2015 (E). Sd/Deputy Registrar