R.S.A No.1360 of 2013

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944 RSA NO. 1360 OF 2013** **AGAINST THE JUDGMENT AND DECREE IN AS 29/2010 OF ADDITIONAL DISTRICT COURT-II MAVELIKKARA AGAINST THE ORDER IN OS 299/1986 OF MUNSIFF COURT,KAYAMKULAM APPELLANT/APPELLANT/ 3RD DEFENDANT/3RD RESPONDENT** RAVEENDRAN, AGED 66 YEARS,ERUMAPPURATHU VEEDU, PERINGALA MURI, KAYAMKULAM VILLAGE. BY ADVS. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 AND 4:** 1 SUJITH,AGED 21 YEARS, S/O.MANOHARAN, RESIDING AT SUJITH BHAVAN, ILLIPPAKULAM MURI, VALLIKUNNAM VILLAGE, PIN 690502. 2 VIJAYANATHAN, AGED 73 YEARS, RESIDING AT BUMAPURATHU VEEDU, PERINGALA MURI, KAYAMKULAM VILLAGE, PIN 690502. 3 DEVAKI VIJAYASREE, AGED 56 YEARS, RESIDING AT BUMAPURATHU VEEDU, PERINGALA MURI, KAYAMKULAM VILLAGE, PIN 690502. BY ADVS. SRI.T.S.HARIKUMAR SRI.K.JAGADEESH SRI.RAJESH S.SUBRAHMANIAN SRI.P.B.SAHASRANAMAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Sathish Ninan, J. ============================== R.S.A No.1360 of 2013** ## **========================== Dated this the 29[th] day of August, 2022** ## **JUDGMENT** This Regular Second Appeal is by the 3[rd] defendant in a suit for partition. The challenge is against the supplementary preliminary decree. The objections of the appellant were overruled by both the Courts. 2. Ext B1 is a Partition Deed dated 28.04.1996 between the plaintiff-Thankamani, and her brothers, sister, and their mother. Though the plaintiff was shown as a party in Ext B1 and was allotted a share, she was not a signatory thereto. Contending that Ext B1 Partition Deed does not bind the plaintiff or her share in the plaint schedule property, the suit was filed seeking partition and separate possession. The 1[st] defendant in the suit was her mother-Devaki, and the other defendants were the plaintiff's brothers and sister. On 30.09.1987, the trial court held that Ext B1 R.S.A No.1360 of 2013 -: 2 :- partition does not bind the plaintiff and passed a preliminary decree for partition declaring the 1/5 shares of the plaintiff. 3. On 27.01.1988, the plaintiff died with the birth of the son. Subsequently, the 1[st] defendant Devaki, who is the mother of the original plaintiff died on 22.10.2005. Thereafter, the son of the original plaintiff filed an application for passing a supplementary preliminary decree claiming the 1/5th share of the original plaintiff and the share of the 1[st] defendant-Devaki that devolved upon him as one of the legal heirs. 4. The 3[rd] defendant in the suit, who is the appellant herein, raised a contention that the 1[st] defendant had, pursuant to Ext B1 partition and on the very same day, executed Sale Deed No.1526/1986, conveying the property alotted to her under Ext B1 in R.S.A No.1360 of 2013 -: 3 :- favour of the 3[rd] defendant. Hence, the 1[st] defendant did not have any share over the property to devolve on her legal heirs on her demise, it was contended. 5. The trial court rejected the contention holding that, such a contention having not been raised in the original preliminary decree proceedings is barred under constructive res judicata. The 3[rd] defendant was unsuccessful in his appeal. It is challenging the same that the 3[rd] defendant has filed this Regular Second Appeal. 6. Heard Sri.R.Rajasekharan Pillai on behalf of the appellant and Sri. T.S.Harikumar on behalf of the contesting respondent on the following substantial question of law: _“Were the Courts right in holding that, the plea of the 3[rd] defendant, of assignment of the rights of the 1[st] defendant in his favour, is barred by res judicata by virtue of the original preliminary decree?_ R.S.A No.1360 of 2013 -: 4 :- 7. In the suit, the plaintiff sought for declaration and partition of her 1/5[th] shares out of the plaint schedule property. The issue raised for trial was, the entitlement of the plaintiff for 1/5[th] shares as claimed by her. A preliminary decree was passed declaring the 1/5[th] share of the plaintiff. Though while arriving at the share of the plaintiff, the shares of the defendants must necessarily have been considered, their entitlement for their respective shares as on the date of the suit and decree was not raised as an issue, nor was it considered or decreed. The first defendant was a sharer. Her share must also have been taken note of while fixing the share of the plaintiff. In a suit for partition the Court ought to pass a preliminary decree declaring the shares of the sharers _**(See Thomas K.T. v Anna @ Accamma John and others, 2018 (3) KHC 749)**_ . However, it was not so done in this case. R.S.A No.1360 of 2013 -: 5 :- 8. The entitlement of the first defendant for her share, as on the date of the suit or decree, were not the subject matter in issue in the suit, nor was the right of the first defendant considered, adjudicated or declared. It is only the matter in issue in the suit that is heard and decided, or a matter which might and ought to have been raised, that constitutes res judicata. The entitlement of the first defendant for declaration and allotment of a share was not in issue nor was raised or considered in the original preliminary decree proceedings. Therefore it cannot be said that the 3[rd] defendant, if he wanted to challenge the share of the 1[st] defendant ought to have done it in the original preliminary decree stage. As noticed above, that the 1[st] defendant was a sharer is not disputed. It is the validity of the alleged Sale Deed 1526/1986 by her in favour of the 3[rd] defendant that is sought to be urged. R.S.A No.1360 of 2013 -: 6 :- Since the entitlement of the 1[st] defendant for allotment of a share was not in issue, such plea is not barred by constructive res judicata. That the entitlement of the first defendant for a share was not an issue nor was it considered or declared in the original preliminary decree, was not brought to the notice of the Courts in the supplementary preliminary decree proceedings. The matter needs to be remanded back to the trial court for consideration of the plea. The substantial question of law is answered accordingly. Resultantly, the Regular Second Appeal is allowed. The decree and judgment of the courts below are set aside. The matter is remanded back to the trial court for disposal denovo. The parties shall be permitted to amend the pleadings and adduce further evidence, if they so choose. Let the supplementary preliminary decree proceedings be concluded within a period of R.S.A No.1360 of 2013 -: 7 :- three months from the date of receipt of a copy of this judgment. Sd/- **Sathish Ninan, Judge** vdv