High Court of KeralaSingle Judge2010-01-11Second Appeal dismissed; no costs.

Puthiya Keloth Kunhiveetil Adamkutty v. Keloth Puthiyapuraiyil Ayisa & Others

Case / Petition Number:S.A. No. 604 of 2001-E

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thomas P. Joseph, J.
Judgment Date: 2010-01-11
Court Decision / Holding: Second Appeal is accordingly dismissed. No costs.
Final Disposition: Second Appeal dismissed; no costs.

Parties to the Case

Appellants / Petitioners

PUTHIYA KELOLOTH KUNHIVEETIL ADAMKUTTY

Respondents

KELOTH PUTHIYAPURAYIL AYISA
SAMEERA
SURAYIKHA
ABDUL KHADER
PUTHIYA KELOTH KUNHI VEETIL ALEEMA
KADEESA
KUNHIMOIDEEN MUSALIYAR
POLLUPPAYIL KADEEJA
POLLUPPAYIL ABDULLA
PANNIYANKANDY PUTHIYAPURAYIL ALEEMA
MAMMED
AMINA
AYISHA
POYYAKKAL PUTHIYAPURAYIL KUNHAMINA
KUNHASISSU
ASSIA
KADER
JAMEELA
CHODATHIL POLUPPAYIL FASALOOL HAK
RAHMATHULLA
ABDUL SATHAR
REMLA
JAMAL MUHAMMED
MARIYATH
PUTHIYA KELOTH THEKKIYIL ALEEMA
ABDUL KAREEM
MASHMOOD
SAINAVA
SUBAIDA
SHAM SUDHEEN
SHAFEENA
PULIKKAL SAINABA
PULIKKAL KUNHAMINA
SHAMSUDHEEN
KUNHAYISSU
REMLA
SAREENA
MAHAROOF
KAMARUDHEEN
SHIHAB
CHODATHIL POLUPPAYIL IBRAHIM
P.K. NAZAR
P.K. SHIHAB
P.K. SHAHIDA
ASSIYA
SEKIENA
SAZFIYA
BASHEER
KANDIKKAL KUNHI PATHUMMA
KANDIKKAL ABDULLA KUTTY
PUTHIYA KELOTH KUNHIVEETIL ABDULLA
SAINABA
KANIYAKKAL KUDAKKANTAVITA PATHOOTY
KANIYAKKAL KUDAKKANTAVITA NURUDIN
DOSAINUDDIN
DOSUBARIA
DOHAJIRA
DOJUMAILA
KALLARUPURAYIL KUNHATHU
KALLARAPURAYIL SURAYYA
KALLARAPURAYIL ANEER
KALLARAPURAYIL AYISSA
KALLARAPURAYIL NASEEM
AYISSU
SAHIDA
MUHAMMED
ANNATH
NASEERA
MAJEED
KAMALUDEEN
MOHAMOOD
NOORJAHAN
UMMER
TAJUDHEEN
KELOTH SULEIKHA
UBAID
UNAISA
NASAIBA
KUTTIYERIKANDY ABIDA
PUTHIYAKELOTH THEKKIYIL NASEERA
PUTHIYAKELOTH THEKKIYIL MUNEERA
PUTHIYA KELOTH THEKKIYIL SAJEERA
BEEFATHUMMA
FAIZAL
FASILA
KHADEEJA
NADEER

Legal Representation & Advocates

Counsels for Petitioners

• MR.V.RAMKUMAR NAMBIAR

Counsels for Respondents

• MR.A.MOHAMED MUSTAQUE
• MR.M.K.SUMOD

Case Synopsis & Summary

This is a Kerala High Court second appeal (S.A. No. 604 of 2001-E) arising from a partition suit O.S. 223 of 1960, in which the appellant (5th respondent) Puthiya Keloth Kunhiveetil Adamkutty challenged the final decree respecting plaint schedule items 3 and 4. The final decree, affirmed on appeal, reserved these items due to Ext. B25, styled kanom kuzhikanom, which defendants 7–9 and 11 claimed conferred non‑partition rights. The appellant contended that Ext. B25 interpretation and related decrees (Exts. A1/A2) misstate the law and that the final decree should reflect Mary Roy v. State of Kerala and the repeal of the Travancore Christian Succession Act, so as to permit partition or alter the reservation. Respondents argued there was no substance in the appeal, noting that the Land Tribunal’s purchase of tenancy rights and subsequent appellate orders had already determined the rights on items 3 and 4, and that a preliminary decree, once final, cannot be reopened in final decree proceedings (Sec. 97 CPC). The court undertook a detailed review of authorities, distinguishing Joseph Philip v. Mariamma Chacko and relying on Mary Roy to hold that the preliminary decree based on a non‑existent law is void, but ultimately concluded that the preliminary decree as to items 3 and 4 had effectively become final, leaving no room to reopen. The Second Appeal was dismissed with no costs.

Provisions of Law Cited

CPC Section 2(2)CPC Order XLVII, Rule 1CPC Section 97Travancore Christian Succession ActPart B States Laws Act, 1951Indian Succession Act, 1925Old Code Order XXXII, Rule 7(1)UP Consolidation of Holdings Act, 1953

Legal Doctrines & Maxims

Preliminary decree once final cannot be reopened in final decree proceedings (Sec. 97, CPC)
Mary Roy v. State of Kerala: Part B States Laws Act, 1951 repeals Travancore Christian Succession Act for Christians in the former Travancore region; intestate succession governed by Indian Succession Act, 1925
There is no embargo on passing supplementary final decree if circumstances warrant (general principle)
Kanom kuzhikanom interpretation and mortgage notion (Ext. B25) as discussed in the context of tenancy rights

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that Ext.B25 kanom kuzhikanom deed confers rights of tenancy on defendant Nos.7 to 9 and 11 and that Exts.A1 and A2, interpreted in light of Mary Roy and subsequent Supreme Court precedents, require revising the final decree rather than granting a continued reservation. Reliance is placed on Madho Das v. Mukand Ram, Phoolchand v. Gopal Lal, Joseph Philip v. Mariamma Chacko, and Kochukunju Stephen v. Ashia Umma to argue that a preliminary decree should not be treated as a fixed basis contrary to evolving law; argued that final decree should reflect the decisions of Mary Roy and the repeal of the Travancore Christian Succession Act; contended that the ‘kanom kuzhikanom’ concept cannot justify indefinite non‑partition and that the lower courts misapplied these authorities.

Contentions of Respondents

The respondents submit there is no merit in the appeal; Ext.B25 is binding to reserve items 3 and 4; Land Tribunal’s tenancy right purchase was confirmed; the preliminary decree for those items has become final and cannot be reopened in final decree proceedings; they rely on Section 97 CPC, and on the binding Mary Roy decision to hold the non‑existence of the Travancore Christian Succession Act’s effect for these Christians; they argue the decision in Joseph Philip v. Mariamma Chacko should not control the present case; they maintain that the lower courts correctly treated Ext.B25 and that the appellate and final decree courts did not err in upholding the reservation.

Cited Precedents (8)

Case Name	Citation	Treatment	Explanation
Phoolchand v. Gopal Lal	(1967) SC 1470	Mentioned Only	Cited by counsel in the discussion; not adopted as controlling in this case.
Joseph Philip v. Mariamma Chacko & Another	(1987 KLJ 1418)	Distinguished	Court held that this decision has no application to the present case.
Madho Das v. Mukand Ram	AIR 1955 SC 481	Mentioned Only	Cited as a judicial precedent but not binding on a non‑party; used as background.
Kochukunju Stephen v. Ashia Umma	2005 [1] KLT 944	Mentioned Only	Cited for principle that no embargo exists on supplementary final decree; not directly applied here.
Mary Roy v. State of Kerala	1986 KLT 508	Positive	Binding on all courts; supported view that the Travancore Christian Succession Act has been repealed with intestate succession governed by the Indian Succession Act.
Jethanand & Sons v. State of U.P	AIR 1961 SC 794	Positive	Support for finality of preliminary decree and non‑reopening in final decree proceedings.
Mool Chand v. Dy. Director Consolidation	1995 [5] SCC 631	Positive	Support for final decree containing matters already concluded by the preliminary decree.
Venkatrao Anantdeo Joshi v. Malatibal	AIR 2003 SC 267	Positive	Support for the principle regarding finality of preliminary decrees.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** ## **MONDAY, THE 11TH JANUARY 2010/ 21ST POUSHA 1931** ## **-----------------------------AS.NO.45/1998 OF ADDL.SUB COURT, THALASSERY, OS.NO.223/1964 OF ADDL.MUNSIFF COURT, KANNUR.** **....................** ## **APPELLANT/APPELLANT/5TH RESPONDENT:** ## **-----------------------------------------------------------------** **PUTHIYA KELOTH KUNHIVEETIL ADAMKUTTY, S/O. KADER, AGRICULTURIST, CHELERI AMSOM, NOONHERI DESOM, P.O. CHELERI, VIA. KANNADIPARAMBA, DIST. KANNUR. (D5).** ## **BY ADV. MR.V.RAMKUMAR NAMBIAR.** ## **RESPONDENTS/RESPONDENTS/PETITIONERS & RESPONDENTS:** **----------------------------------------------------------------------------------------------** **1. KELOTH PUTHIYAPURAYIL AYISA, W/O. ABDUL RAHIMAN, MUTTILAVALAPPIL HOUSE, CHELERI AMSOM, NOONHERI DESOM, P.O. CHELERI, VIA. KANNADIPARAMBA, DT. KANNUR (P2).** **2. SAMEERA, D/O. ABDU RAHIMAN, -DO- -DO- (P3).** **3. SURAYIKHA, D/O. ABDU RAHIMAN, -DO- -DO- (P4)** **4. ABDUL KHADER, S/O. ABDU RAHIMAN, -DO- -DO- (P5).** **5. PUTHIYA KELOTH KUNHI VEETIL ALEEMA, D/O. KADER, CHELERI AMSOM, NOONHERI DESOM, P.O. CHELERI. VIA. KANNADIPARAMBA, DT. KANNUR (D3) (DIED)** **6. -DO- KADEESA, D/O. KADER, -DO- -DO- (D6). (DIED).** **7. KUNHIMOIDEEN MUSALIYAR, S/O. MAMMI HAJI,** - **-DO- -DO- (D9). (DIED).** ## **S.A. NO.604/2001-E:** - ***d 8. POLLUPPAYIL KADEEJA, D/O. MAMMI HAJI, -DO- -DO- (D16). (DIED).** |***e**|**9.**|**POLLUPPAYIL ABDULLA, S/O. MAMMI HAJI,**||| |---|---|---|---|---| |||**-DO- -DO- (DIED).**||| ||**10.**|**PANNIYANKANDY PUTHIYAPURAYIL ALEEMA,**||| |||**RESIDING AT KUNHIPALLI,P.O. KOTTALI (D37).**||| ||**11.**|**-DO-** **-DO-** **MAMMED,** **-DO-** **-DO-**|**(D38)**|| ||**12.**|**-DO-** **-DO-** **AMINA,** **-DO-** **-DO-**|**(D 39)**|| ||**13.**|**-DO-** **-DO-** **KUNHIMOIDEEN,** **-DO-**|**-DO-**|**(D40).**| ||**14.**|**-DO-** **-DO-** **AYISHA,** **-DO-** **-DO-**|**(D41).**|| ||**15.**|**POYYAKKAL PUTHIYAPURAYIL KUNHAMINA, D/O.**||**AYAMMAD,**| |||**NARATH AMSOM & DESOM, P.O. NARATH, DIST. KANNUR (D42).**||| ||**16.**|**-DO-** **-DO-** **KUNHASISSU,** **-DO-**|**-DO-**|**(D43).**| ||**17.**|**-DO-** **-DO-** **KUNHIMOIDEEN,** **-DO-**|**-DO-**|**(D44).**| ||**18.**|**-DO-** **-DO-** **ASSIA,** **-DO-** **-DO-**|**(D45).**|| ||**19.**|**-DO-** **-DO-** **KADER,** **-DO-** **-DO-**|**(D46).**|| ||**20.**|**-DO-** **-DO-** **JAMEELA,** **-DO-** **-DO-**|**(D47).**|| ||**21.**|**CHODATHIL POLUPPAYIL FASALOOL HAK,**|**S/O. KADER,**|| |||**CHELERI AMSOM, NOONHERI DESOM, P.O.**|**CHELERI,**|| |||**VIA, KANNADIPARAMBA, DIST. KANNUR.**|**(D48).**|| ||**22.**|**-DO-** **RAHMATHULLA,** **-DO-** **(D49).**||| ||**23.**|**-DO-** **ABDUL SATHAR,** **-DO-** **(D50).**||| ||**24.**|**-DO-** **REMLA,** **D/O. KADER** **-DO-**|**(D51).**|| ||**25.**|**-DO-** **JAMAL MUHAMMED, S/O. KADER,**|**-DO-**|**(D52).**| ||**26.**|**-DO-** **MARIYATH,** **D/O. KADER,** **-DO-**|**(D53).**|| ||**27.**|**PUTHIYA KELOTH THEKKIYIL ALEEMA, CHELERI AMSOM,**||| |||**NOONHERI DESOM, P.O. CHELERI, VIA. KANNADIPARAMBA,**||| |||**DIST. KANNUR (D54).**||| ||**28.**|**-DO-** **ABDUL KAREEM,** **-DO-** **-DO-**|**(D55).**|| ||**29.**|**-DO-** **MASHMOOD, -DO-** **-DO-** **(D58).**||| ## **S.A. NO.604/2001-E:** |**30.**|**-DO-** **SAINAVA,** **-DO-**|**-DO-**|**(D59).**|| |---|---|---|---|---| |****31.**|**-DO-** **SUBAIDA,** **-DO-**|**-DO-**|**(D60).**|| |**32.**|**-DO-** **KUNHIMOIDEEN,**|**-DO-**|**-DO-**|**(D61).**| |**33.**|**-SO-** **SHAM SUDHEEN,**|**-DO-**|**-DO-**|**(D62).**| |**34.**|**-DO-** **MARIYATH,** **-DO-**|**-DO-**|**(D63).**|| |**35.**|**CHODATHIL POLUPAYRIL**|**ABDUL SALAM,**||| ||**NOONHERI AMSOM & DESOM,**|||| ||**P.O. CHELERI, VIA. KANNADIPARAMBA,**|||| ||**DIST. KANNUR.**|||| |**36.**|**-DO-** **SAINAVA,** **-DO-**|**-DO-.**||| |**37.**|**PANAKKOOL ABDU RAHIMAN, PULIYAMBARAM,**|||| ||**VIA. PERINGATHUR, DIST.**|**KANNUR.**||| |**38.**|**-DO-** **ABDULLA,** **-DO-**|**-DO-.**||| |**39.**|**-DO-** **KADER** **-DO-**|**-DO-.**||| |**40.**|**-DO-** **ABOOBACKER,**|**-DO-**|**-DO-.**|| |**41.**|**-DO-** **ABDUL KAREEN,**|**-DO-**|**-DO-.**|| |**42.**|**PUTHIYA KELOTH KUNHI VEETTIL MARIYUMMA,**|||| ||**CHELERI AMSOM, NOONHERI DESOM,**|||| ||**P.O. CHELERI, VIA. KANNADIPARAMBA,**|||| ||**DIST. KANNUR.**|||| |**43.**|**-DO-** **SAKEENATH, -DO-**|**-DO-**||| |***f 44.**|**-DO-** **ABDUL SAMAD,**|**-DO-**|**-DO-.**|**(DIED).*****| |**45.**|**-DO-** **ABDUL BASHEER,**|**-DO-**|**-DO-.**|| |**46.**|**-DO-** **KUNHAMINA,**|**-DO-**|**-DO-.**|| |**47.**|**-DO-** **KOULATH,**|**-DO-**|**-DO-.**|| |**48.**|**-DO-** **ABDUL JABBAR,**|**-DO-**|**-DO-.**|| ## **S.A. NO.604/2001-E:** ||**49.**|**-DO-** **NAZEEM,** **-DO-** **-DO-.**|||| |---|---|---|---|---|---| |***g **|**50.**|**PALLERI PATHOOTY, KANNADIPARAMBA,**|||| |||**P.O. KANNADIPARAMBA, DIST. KANNUR. (DIED).**|||| ||**51.**|**PALLERI ABDULLA, S/O. PATHOOTY.**|**-DO-**|**-DO-.**|| ||**52.**|**VELLINACHIRI PEEDIKIAYIL AYISSA,**|||| |||**CHELERI AMSOM NOONHERI DESOM,**|||| |||**P.O. CHELERI, VIA. KANNADIPARAMBA,**|||| |||**DIST. KANNUR.**|||| ||**53.**|**-DO-** **ALTHAF,** **-DO-** **-DO-.**|||| ||**54.**|**CHODATHIL POLUPPAYIL MARIYUMMA,**|||| |||**CHEKKIKULAM.**|||| ||**55.**|**-DO-** **MUHAMMED, CHELERI AMSOM NOONHERI DESOM,**|||| |||**P.O. CHELERI, VIA. KANNADIPARAMBA, DIST. KANNUR.**|||| |***h **|**56.**|**-DO-** **ABDUL KAREEM,** **-DO-** **-DO-. (DIED).**|||| ||**57.**|**CHODATHIL POLUPPAYIL AYISSU,** **-DO-**|**-DO-.**||| ||**58.**|**-DO-** **ABDULLA,** **-DO-** **-DO-.**|||| ||**59.**|**-DO-** **RASHEED,** **-DO-** **-DO-.**|||| ||**60.**|**-DO-** **JABBAR,** **-DO-** **-DO-.**|||| |***i**|**61.**|**C.K. ABDUL BASHEER,** **-DO-** **-DO-.**|**(DIED).**||| ||**62.**|**PUTHIYA KELOTH THURUTHIYIL NABEENA,**||**-DO-**|**-DO-.**| ||**63.**|**-DO-** **AMINA,** **-DO-** **-DO-.**|||| ||**64.**|**-DO-** **JAMEELA,** **-DO-** **-DO-.**|||| ||**65.**|**-DO-** **SUBAIR,** **-DO-** **-DO-.**|||| ||**66.**|**-DO-** **IQBAL,** **-DO-** **-DO-.**|||| ||**67.**|**-DO-** **ROULA,** **-DO-** **-DO-.**|||| ||**68.**|**KALLARA PUTHIYA PURAYIL SALAMATH,**|||| |||**D/O. KUNHI MOIDEEN MUSALIYAR, -DO-**|**-DO-.**||| ## **S.A. NO.604/2001-E:** |**69.**|**CHERU MUNDAYADI PEEDIKAYIL NAFEESA,**|**CHERU MUNDAYADI PEEDIKAYIL NAFEESA,**|| |---|---|---|---| ||**W/O. KUNHI MOIDEEN, CHALADANTAVIDA, **|**-DO-**|**-DO-.**| |**70.**|**-DO-** **SHARAFUDDIN,** **-DO-** **-DO-.**||| |**71.**|**-DO-** **SHAKEER, (MINOR 18 YEARS)**|**-DO-**|**-DO-.**| |**72.**|**-DO-** **SHAFEEK, (MINOR 15 YEARS)**|**-DO-**|**-DO-.**| |**73.**|**-DO-** **SHAFEENA, (MINOR 13 YEARS)**|**-DO-**|**-DO-.**| |**74.**|**-DO-** **SHAFEE, (MINOR 11 YEARS)**|**-DO-**|**-DO-.**| ||**MINOR RESPONDENTS 71 TO 74 REPRESENTED BY THEIR**||| ||**GUARDIAN AND MOTHER THE 69TH RESPONDENT.**||| |**75.**|**PULIKKAL SAINABA, D/O. KALANTHANKUTTY HAJI,**||| ||**KANNADIPARAMBA, MATHODAM DESOM,**||| ||**P.O. KANNADIPARAMBA, DIST. KANNUR.**||| |**76.**|**PULIKKAL KUNHAMINA,** **-DO-** **-DO-.**||| |**77.**|**-DO-** **SHAMSUDHEEN,** **-DO-** **-DO-.**||| |**78.**|**-DO-** **KUNHAYISSU,** **-DO-** **-DO-.**||| |**79.**|**-DO-** **REMLA,** **-DO-** **-DO-.**||| |**80.**|**-DO-** **SAREENA,** **-DO-** **-DO-.**||| |**81.**|**-DO-** **MAHAROOF,** **-DO-** **-DO-.**||| |**82.**|**-DO-** **KAMARUDHEEN,** **-DO-** **-DO-.**||| |**83.**|**-DO-** **SHIHAB,** **-DO-** **-DO-.**||| |**84.**|**CHODATHIL POLUPPAYIL IBRAHIM, PAVANNUR,**||| ||**MAYYIL, P.O. MAYYIL, DIST. KANNUR.**||| |**85.**|**-DO-** **AMINA, CHELERI AMSOM NOONHERI DESOM,**||| ||**P.O. CHELERI, VIA. KANNADIPARAMBA, DIST. KANNUR.**||| |**86.**|**P.K. NAZAR,** **-DO-** **-DO-.**||| |**87.**|**P.K. SHIHAB,** **-DO-** **-DO-.**||| |**88.**|**P.K. SHAHIDA, -DO-** **-DO-.**||| ## **S.A. NO.604/2001-E:** **89. CHODATHIL POLUPPAYIL AYISSA, CHELERI AMSOM, NOONHERI DESOM, P.O. CHELERI, VIA. KANNADIPARAMBA, DT. KANNUR.** **90. -DOASSIYA, -DO-DO-. 91. -DOSEKKEENA, -DO-DO-. 92. -DOSAZFIYA, -DO-DO-. 93. -DOBASHEER, -DO-DO-.** **94. KANDIKKAL KUNHI PATHUMMA, D/O. HASSAN, KANDIKKAL HOUSE, P.O. KOLACHERY, DT. KANNUR.** **95. KANDIKKAL ABDULLA KUTTY, S/O. KUNHI PATHUMMA, -DO-DO-.** - ***a R5 DIED. ADDL.R.96 TO R.98 IMPLEADED:** **96. PUTHIYA KELOTH KUNHIVEETIL ABDULLA, AGED 60 YEARS, P.O. KANNADIPARAMBA, DIST. KANNUR.** **97. -DO-DOABDUL KAREEM, AGED 55 YEARS, P.O. KANNADIPARAMBA, KANNUR DIST.** **98. -DO-DOSAINABA, AGED 50 YEARS, P.O. CHELARI, VIA. KANNADIPARAMBA, DIST. KANNUR.** - ***a ADDL. R.96 TO R.98 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 5TH RESPONDENT, AS PER ORDER DTD. 05/02/08 ON I.A. NO.1073/04.** ## ***e R9 DIED – ADDL. R.99 TO R.104 IMPLEADED:** **99. KANIYAKKAL KUDAKKANTAVITA PATHOOTY, AGED 60 YEARS, CHELERI AMSOM, NOONHERI DESOM, P.O. CHELARI, VIA. KANNADIPARAMBA, DT. KANNUR.** **100. KANIYAKKAL KUDAKKANTAVITA NURUDIN, AGED 42 YEARS, -DO-DO-.** **101. -DO-DOSAINUDDIN, AGED 38 YEARS, -DO-.** ## **S.A. NO.604/2001-E:** **102. -DO-DOSUBARIYA, AGED 35 YEARS, D/O. ABDULLA, P.O. KANNADIPARAMBA, KANNUR DIST.** **103. -DO-DOHAJIRA, AGED 30 YEARS, -DO-DO-.** **104. -DO-DOJUMAILA, AGED 27 YEARS, D/O. ABDULLA, P.O. CHELARI, VIA. KANNADIPARAMBA, KANNUR DISTRICT.** - ***e ADDL. R.99 TO R.104 ARE IMPLEADED AS LR'S OF DECEASED 9TH RESPONDENT AS PER ORDER DT. 05/02/08 ON I.A. 1074/04.** - ***c R7 DIED – ADDL. R.105 TO R.109 IMPLEADED:** **105. KALLARUPURAYIL KUNHATHU, D/O. MOIDEENKUTTY, CHELARI AMSOM, KARAYAP DESOM, P.O. CHELARI, VIA. KANNADIPARAMBA, KANNUR DISTRICT.** **106. KALLARAPURAYIL SURAYYA, -DO-DO-.** **107. KALLARAPURAYIL ANEER, -DO-DO-. 108. KALLARAPURAYIL AYISSA, -DO-DO-. 109. KALLARAPURAYIL NASEEM, -DO-DO-.** - ***c R.68 RECORDED AND ADDL. RESPONDENTS 105 TO 109 ARE IMPLEADED AS LR'S OF DECEASED 7TH RESPONDENT AS PER ORDER DTD. 19/03/08 ON I.A. NO.1933/06.** - ***h R.56 DIED – ADDL. R.110 TO R.115 IMPLEADED:** **110. AYISSU, W/O. CHODATHIL POLUPPAYIL ABDUL KAREEM, AGED 50 YEARS, RESIDING AT CHELERI AMSOM, NOONHERI DESOM, POST CHELERI, VIA. KANNADIPARAMBA, KANNUR – 670 604.** **111. SAHIDA, D/O. CHODATHIL POLUPPAYIL ABDUL KAREEM, AGED 30 YEARS, RESIDING AT -DO- -DO-.** **112. MUHAMMED, S/O. -DO- , AGED 28 YEARS, RESIDING AT -DO-DO-.** **113. ANNATH, D/O. -DOAGED 24 YEARS, RESIDING AT -DO-DO-.** ## **S.A. NO.604/2001-E:** **114. NASEERA, D/O. -DO-DO-, AGED 20 YEARS, RESIDING AT -DO-DO-.** **115. MAJEED, S/O. -DO- AGED 18 YEARS, RESIDING AT -DO-DO-.** - ***h ADDL. RESPONDENTS 110 TO 115 ARE IMPLEADED AS LR'S OF DECEASED 56TH RESPONDENT AS PER ORDER DTD. 19/03/08 ON I.A. NO.1885/07.** ## ***d R8 DIED – ADDL. R.116 TO R.120 IMPLEADED:** **116. KAMALUDEEN HAJI, S/O. POLUPPAYIL KADEEJA, AGED 60 YEARS, RESIDING AT PANMYANKANDY, POST KOLACHERRY, KANNUR.** - _**(*j)**_ **117. MOHAMOOD, S/O. -DO-, AGED 55 YEARS, RESIDING AT CHELARI, POST CHELARI, VIA. KANNADIPARAMBA, KANNUR – 672 604. (DIED).** **118. NOORJAHAN, D/O. -DOAGED 50 YEARS, RESIDING AT -DO-DO-.** **119. UMMER, S/O. -DO-DO-. 120. TAJUDHEEN, S/O. -DO-DO-.** - ***d ADDL. RESPONDENTS 116 TO 120 ARE IMPLEADED AS LR'S OF DECEASED 8TH RESPONDENT AS PER ORDER DTD. 19/03/08 ON I.A. 70/08.** ## ***i R.61 DIED – ADDL. R.121 TO R.124 IMPLEADED:** **121. KELOTH SULEIKHA, W/O. C.P. ABDUL BASHEER, AGED 40 YEARS, RESIDING AT KELOTH HOUSE, CHELARI AMSOM, NOONHERI DESOM, VIA. KANNADIPARAMBA, KANNUR.** **122. UBAID, S/O. C.P. ABDUL BASHEER, AGED 12 YEARS, RESIDING AT -DO- -DO-.** **123. UNAISA, D/O. -DOAGED 10 YEARS, RESIDING AT -DO-DO-.** **124. NASAIBA, D/O. C.P. ABDUL BASHEER, AGED 6 YEARS, RESIDING AT -DO-DO-.** ## ***i ADDL. RESPONDENTS 121 TO 124 ARE IMPLEADED AS LR'S OF DECEASED 61ST RESPONDENT AS PER ORDER DT. 19/03/08 ON I.A. 373/08.** ## **S.A. NO.604/2001-E:** ## **R.117 DIED – ADDL. R.125 TO R.128 IMPLEADED:** _**(*j)**_ **125. KUTTIYERIKANDY ABIDA, D/O. LATE MAHAMOOD, AGED 27, ABDULLA, MANZIL, KUTTIERIKANDY, CHELARI AMSOM, NOONHERI DESOM, VIA. KANNADIPARAMBA, KANNUR.** **126. PUTHIYAKELOTH THEKKIYIL NASEERA, D/O. LATE MAHAMOOD, AGED 24, THEKKIYIL HOUSE, CHELERI AMSOM -DO-DO-.** **127. PUTHIYAKELOTH THEKKIYIL MUNEERA, D/O. LATE MAHAMOOD, AGED 22, -DO-DO-.** **128. PUTHIYA KELOTH THEKKIYIL SAJEERA, D/O. LATE MAHAMOOD, AGED 20, -DO-DO-.** - **ADDL. RESPONDENTS 125 TO 128 ARE IMPLEADED AS LEGAL HEIRS OF** - _**(*j)**_ **DECEASED R.117 AS PER ORDER DTD. 28/01/09 ON I.A. 1422/08.** ## ***f R.44 DIED – ADDL. 129 TO R.133 IMPLEADED:** **129. BEEFATHUMMA, W/O. LATE ABDUL SAMAD, AGED 45 YEARS, RESIDING AT CHELERI AMSOM, NOONHERI DESOM, VIA. KANNADIPARAMBA, KANNUR DISTRICT.** **130. FAIZAL, S/O. LATE ABDUL SAMMAD, AGED 24, RESIDING AT -DO-DO-.** **131. FASILA, D/O. LATE ABDUL SAMAD, AGED 22, RESIDING AT -DO-DO-.** **132. KHADEEJA, D/O. LATE ABDUL SAMAD, AGED 20, RESIDING AT -DO- -DO-.** **133. NADEER, S/O. LATE ABDUL SAMAD, AGED 18, RESIDING AT -DO-DO-.** - ***f ADDL. RESPONDENTS 129 TO 133 ARE IMPLEADED AS LR'S OF DECEASED 44TH RESPONDENT AS PER ORDER DT. 05/10/09 ON I.A. 62/09.** ***** T IS RECORDED THAT R.44 DIED, R6 IS RECORDED AS ONE OF THE LEGAL HEIRS OF R.44 AS PER ORDER DT. 19/01/09 ON MEMO BEARING C.F. NO.181/09.** ## **S.A. NO.604/2001-E:** ***b R6 DIED AND RECORDED:** **IT IS RECORDED THAT RESPONDENTS 42, 43 AND 45 TO 49 ARE LEGAL HEIRS OF DECEASED 6TH RESPONDENT AS PER ORDER DTD. 10/12/09 ON I.A. NO. 2792/09.** **IT IS RECORDED THAT R.50 DIED. R.51 IS THE SOLE LEGAL *g** **REPRESENTATIVE OF R.50 AS PER ORDER DTD. 05/02/08 ON I.A. NO.1075/04.** **** 31ST RESPONDENT IS RECORDED AS ONE OF THE LEGAL REPRESENTATIVE OF DECEASED RESPONDENT 117 AS PER ORDER DTD. 08/07/08 ON MEMO NO. C.F. 3685/08 DTD. 02/07/08.** **R6,7,41 TO 48, 74, 75, 77 TO 82 & ADDL.R.129 TO 133 BY ADV. MR.A.MOHAMED MUSTAQUE, ADDL.R52 & 53 BY ADV. MR..M.K.SUMOD.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **S.A. NO.604 of 2001** = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11[th] day of January, 2010 ## **J U D G M E N T** ---------------------- I had dictated my judgment in this Second Appeal after hearing both sides on 17.12.2009. But before the judgment was signed learned counsel for appellant requested for further hearing of the appeal and it was posted to this day to be spoken to. The matter was elaborately heard again and I propose to dispose of the Second Appeal by this judgment. 2. Second Appeal arises from the final decree passed by learned Munsiff, Kannur in O.S. No.223 of 1960 a suit for partition. That final decree was confirmed by the learned Sub Judge in A.S. No.45 of 1988. Hence this Second Appeal at the instance of defendant No.5. The following substantial question of law is framed for a decision: Whether in the light of the decision of this Court and the Supreme Court between the parties as to the nature and character of Ext.B25 courts below are legally correct in upholding the reservation granted in favour of defendant Nos.7 to 9 and 11 in respect of plaint schedule item Nos.3 and 4? 3. It is contended by learned counsel for defendant No.5 ## **S.A. No.604 of 2001** ## -: 2 :- that in the light of the decisions of this Court and Supreme Court evidenced by Exts.A1 and A2 courts below were not legally correct or justified in retaining the reservation granted to defendant No.7 to 9 and 11 based on Ext.B25, document in question styled as kanom kuzhikanom deed dated 14.5.1936. It is also contended by learned counsel that taking note of Exts.A1 and A2 final decree court should have refused to pass a final decree in terms of the preliminary decree. Learned counsel placed reliance on the decisions in **Phoolchand v. Gopal Lal** (1967 SC 1470), **Joseph Philip v. Mariamma Chacko & Another** (1987 KLJ 1418), **Madho Das v. Mukand Ram** (AIR 1955 SC 481), and **Kochukunju Stephen v. Ashia Umma** (2005 [1] KLT 944). Leaned counsel for defendant Nos.7 to 9 and 11 would contend that so far as item Nos.3 and 4 of the plaint schedule are concerned accepting the contention of defendant Nos.7 to 9 and 11 that Ext.B25 conferred kanom kuzhikanom right on them trial court refused to grant a preliminary decree for partition of those items and reserved those items to defendant Nos.7 to 9 and 11. Hence the preliminary decree to the extent it concerned item Nos.3 and 4 has to be treated as a final decree and nothing survived for the final decree court to decide as regards those items. Learned counsel invited my attention to the definition of the word “decree” in ## **S.A. No.604 of 2001** ## -: 3 :- Section 2(2) of the Code of Civil Procedure (for short, “the Code”). It is also contended by learned counsel that the fact that finding on Ext.B25 by the trial court as well as the appellate court was not approved by this Court and the Supreme Court in separate proceeding cannot be a reason to refuse to pass a final decree so far as the preliminary decree stands. Learned counsel invited my attention to the explanation to Order XLVII, Rule 1 of the Code. 4. Before considering the issue raised by learned counsel for appellant-defendant No.5 it is apposite to refer to the factual position of the case. Dispute is concerning reservation granted in favour of defendant Nos.7 to 9 and 11 in respect of item Nos.3 and 4. In defence of the prayer for partition of said items defendant Nos.7 to 9 and 11 set up Ext.B25, 'kanom kuzhikanom' deed dated 14.5.1936 and claimed that the said items are not partible. That contention was accepted by the trial court and accordingly a preliminary decree for partition was passed in respect of items other than item Nos.3 and 4. Plaintiffs and defendant No.5 preferred A.S. Nos. 140 and 153 of 1975. The appeals were disposed of on 13.08.1977. The judgment and decree of the trial court so far as it concerned item Nos.3 and 4 were confirmed. That matter ended there. After passing of the preliminary decree and judgment, defendant Nos.7 to 9 and 11 approached the Land ## **S.A. No.604 of 2001** ## -: 4 :- Tribunal with an application (O.A.No.4496 of 1975) to purchase tenancy right. The Land Tribunal allowed that application which was confirmed by the Appellate Authority (LR) in A.A. No.48 of 1978. Decision of the Appellate Authority was challenged in this Court in CR.P. No.2893 and connected cases of 1980. As per order dated 17.11.1981 this Court held that the right created under Ext.B25 is not a kanom kuzhikanom right but is a mortgage. That order was challenged by defendant Nos.7 to 9 and 11 before the Supreme Court in Civil Appeal No.3445 of 1982. Appeal was dismissed on 25.3.1992 confirming the order passed by this Court in C.R.P. No.2893 and connected cases of 1980. Notwithstanding the orders of this Court and the Supreme Court the preliminary decree passed by the trial court remained intact. In the application for passing final decree defendant No.5 produced certified copies of the order passed by this Court and the Supreme Court (in the Civil Revision Petitions and Civil Appeal) and the same were marked as Ext.A2 and A1, respectively. Based on Exts.A1 and A2 it was contended that item Nos.3 and 4 are partible and that final decree is to be passed taking into account Exts.A1 and A2 (partitioning item Nos.3 and 4 also). Final decree court observed that since preliminary decree has become final that issue cannot be re-agitated in the final decree proceedings and a final decree was passed in ## **S.A. No.604 of 2001** ## -: 5 :- tune with the preliminary decree. That was confirmed by the first appellate court in A.S.No.45 of 1998 which is under challenge in this Second Appeal on the substantial question of law framed above. 5. I shall refer to the decision relied on by both sides. In **Madho Das v. Mukuand Ram** (Supra) the Supreme held in respect of a document considered by the Privy Council that though the decision is not binding on the person who was not a party to the litigation it would operate as a judicial precedent. In **Phoolchand v. Gopal Lal** (supra) question considered was whether consequent to the death of some of the sharers after a preliminary decree was passed there could be a supplementary preliminary decree taking note of variation in shares. Question was answered in the affirmative. **Joseph Philip v. Mariamma Chacko and Another** (supra) was a case where a preliminary decree for partition was passed based on the Travancore Christian Succession Act. An application for passing final decree in tune with the preliminary decree was made. In the meantime the Supreme Court rendered decision in **Mary Roy v. State of Kerala** (1986 KLT 508) holding that from the day Part B States Laws Act, 1951 came into force the provisions of the Travancore Christian Succession Act has no application as it stood impliedly repealed and that so far as Christians of erstwhile State of Travancore are concerned, intestate ## **S.A. No.604 of 2001** ## -: 6 :- succession of such persons is governed by Chapter II of Part V of the Indian Succession Act, 1925. In view of that decision the court refused to pass a final decree holding that preliminary decree was passed basing on a non-existent and repealed law as ruled by the Supreme Court, preliminary decree therefore is null land void and hence no final decree could be passed in tune with the preliminary decree. Application for passing final decree was dismissed. Plaintiffs challenged that order of final decree court in this Court in C.R.P. This Court held that decision of the Supreme Court in **Mary Roy v. State of Kerala** (supra) is binding on all courts in the country by virtue of Article 141 of the Constitution of India and that the final decree court was legally correct in holding that preliminary decree was passed on a non-existent law due to repeal and hence it is null and void. This Court upheld decision of the final decree court refusing to pass a final decree. In **Kochukunju Stephen v. Ashia Ummal** (supra) again what is held by this Court is that there is no embargo in passing supplementary final decree if circumstances warranted that. Argument of counsel for defendant No.5 based on the above decisions is that decisions rendered by this Court and the Supreme Court evidenced by Exts.A1 and A2 interpreting Ext.B25 must be taken as a precedent binding on the parties and hence final decree could not have been passed against what is ## **S.A. No.604 of 2001** ## -: 7 :- stated in Exts.A1 and A2. 6. Learned counsel for defendant Nos.7 to 9 and 11 contended that there is no substance in the appeal. Learned counsel has referred me to the preliminary decree passed by the trial court. There, it is stated that so far as plaint schedule item Nos.3 and 4 are concerned, it is not available for partition in view of Ext.B25 which that court interpreted as conferring right of tenancy on defendant Nos.7 to 9 and 11. Accordingly partition was refused in respect of item Nos.3 and 4. Drawing sustenance from the definition of the word “decree” in Sec.2(2) of the Code learned counsel for defendant Nos.7 to 9 and 11 argued that the decree of trial court to the extent it refused partition of plaint schedule item Nos.3 and 4 cannot be called a preliminary decree as it is final in character since nothing was required to be done in respect of that part of the decree and hence question of passing a final decree in respect of item Nos.3 and 4 or reopening partibility of item Nos.3 and 4 did not arise. Learned counsel would refer to the explanation to Order XLVII, Rule 1 of the Code and argue that even in such an extreme situation a review is not warranted. 7. Trump-card of the argument of the appellant-defendant No.5 is the decision in **Philip Joseph v. Mariamma Chacko and Another** (supra). But the factual and legal background in which that ## **S.A. No.604 of 2001** ## -: 8 :- decision was rendered cannot be lost sight. Indisputably in that case preliminary decree was passed on a non-existent and repealed law though declaration in that regard was declared by the Supreme Court in **Mary Roy v. State of Kerala** (supra) only after the preliminary decree was passed. Decision in **Mary Roy v. State of Kerala** is a declaration of law made by the Supreme Court under Article 141 of the Constitution and binding on all concerned. Hence the final decree court was justified in holding that no final decree could be passed on the strength of a preliminary decree which is null and void. No final decree could be passed, as in the eye of law there was no preliminary decree. No such factual or legal situation arises on the facts of this case. It cannot be argued that the preliminary decree passed by the trial court in this case is null and void. May be it could be said in the light of the decisions of this Court and the Supreme Court though in separate proceeding that the interpretation given to Ext.B25 by the court which passed the preliminary decree is shown to be not correct. But that does not make the preliminary decree null and void or unsettle it. Defendant Nos.7 to 9 and 11 moved the Land Tribunal for purchase of tenancy right based on Ext.B25 after the trial court held that Ext.B25 conferred tenancy right on them and hence the Land Tribunal was bound by the decision of the trial court. Section 97 of ## **S.A. No.604 of 2001** ## -: 9 :- the Code also makes it abundantly clear that a preliminary decree which has become final cannot be challenged in final decree proceeding. Rights concluded by the preliminary decree cannot be reopened in the final decree proceeding. In this case right of the parties as regards item Nos.3 and 4 based on Ext.B25 has been concluded by the preliminary decree. That has been confirmed by the appellate court and has become final. As rightly pointed out by learned counsel for defendant Nos.7 to 9 and 11 that decree cannot be termed as preliminary decree so far as item Nos.3 and 4 are concerned in so far as for once and all, it has been held that item Nos.3 and 4 are not available for partition. Therefore the preliminary decree to the extent it concerned partibility of item Nos.3 and 4 was really a final decree and nothing survived for passing a final decree so far as those items are concerned. Viewed in that line decision in **Joseph Philip v. Mariamma Chacko and Another** (supra) has no application. Other decisions relied on by learned counsel only referred to the power of the court to pass supplementary final decree which question does not arise for consideration in this case. 8. I may also profitably refer to the decisions of the Supreme Court in **Jethanand & Sons v. Sate of U.P** (AIR 1961 SC 794), **Mool Chand v. Dy.Director Consolidation** ## **S.A. No.604 of 2001** ## -: 10 :- ## (1995 [5] SCC 631) and **Venkatrao Anantdeo Joshi v.** **Malatibal** (AIR 2003 SC 267). In the first of these decisions question arose whether preliminary decree which was passed in violation of Order XXXII, Rule 7(1) of the Old Code could be said to be null and void and that could be ignored. The Supreme Court held that preliminary decree cannot be said to be null and void. There, preliminary decree for partition was not appealed against and became final. The Supreme Court held that preliminary decree cannot be challenged in the appeal against final decree on the ground of non-compliance of Order XXXII Rule 7(1) of the Old Code. Second of the above decisions concerned application of U.P. Consolidation of Holdings Act, 1953 and its effect on a preliminary decree which had already become final. The Supreme Court held that preliminary decree finalises matters relating to the rights and interests while final decree only works out only those rights and in so far as there was failure to appeal against preliminary decree, Sec. 97 of the Code operates as a bar to raising any objection to the correctness of the preliminary decree in the appeal against the final decree. In the last of the above decisions the Supreme Court after referring to the provisions of Sec.97 of the Code stated that once the preliminary decree has become final respondents who claimed possession through one of the defendants in the suit cannot at the ## **S.A. No.604 of 2001** ## -: 11 :- time of passing final decree plea that he was a tenant of the property and hence the property is not liable for partition. Facts of the present case would attract the above decisions in my view. Assuming that the trial court and the first appellate court which considered the appeal from preliminary decree were wrong in interpreting Ext.B25, a wrong decision if not challenged in appeal and got corrected, once it became final is binding on the parties. In that view of the matter I am in agreement with the decision of the courts below that the final decree court could not have reopened matters which are already concluded by the preliminary decree (so far as item Nos.3 and 4 are concerned I stated that it is a final decree). Hence courts below cannot be found fault with for not reopening the preliminary decree in the proceeding for final decree. The substantial question of law framed is answered in the above line. Second Appeal is accordingly dismissed. No costs. ## **THOMAS P.JOSEPH, JUDGE.** vsv ## **S.A. No.604 of 2001** -: 12 :- **THOMAS P.JOSEPH, J. ===================** **S.A. NO.604 of 2001 ===================** **J U D G M E N T** **11TH JANUARY, 2010** ## **S.A. No.604 of 2001** -: 13 :-