High Court of KeralaSingle JudgeOriginal petition dismissed; the court upheld t...

Santoshavally v. Vilasini and others (OP(C) No. 2129 of 2017)

Case / Petition Number:OP(C) No. 2129 of 2017
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Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2022-07-11
Court Decision / Holding
Original petition dismissed; Exts P4 and P5 upheld; the petitioner is not a necessary party to the partition suit; the reserved rights under the Will may be pursued through appropriate independent channels (OS 234/2016 or the appeal), and the court declined to interfere under Article 227.
Final Disposition
Original petition dismissed; the court upheld the orders Ext P4 and Ext P5; the petitioner was not a necessary party to the partition suit.

Parties to the Case

Appellants / Petitioners

  • Santoshavally

Respondents

  • Vilāsini
  • Ammini
  • Chandravathi
  • Sulochana
  • Susheela
  • Addl. Bindu
  • Addl. Rathy

Legal Representation & Advocates

Counsels for Petitioners

  • • T. N. Manoj

Counsels for Respondents

  • • G. Sreekumar (Chelur)

Case Synopsis & Summary

This Original Petition (OP(C) 2129/2017) was heard by a Single Judge of the Kerala High Court to challenge two orders (Exts P4 and P5) in IA Nos. 2352/2016 and 59/2017 in IA No. 1736/2015 in OS No. 6/2014, of the Additional Subordinate Judge, Irinjalakkuda. The petitioner, Santoshavally (wife of the late Viswambaran), sought impleadment in the partition suit that sought to finalize a preliminary decree for partition of the B schedule property under a Will dated 60/83, upon which the respondents (1–5) had instituted OS No. 6/2014. The Will bequeathed A schedule to the petitioner’s husband and B schedule to respondents 1–5, with the petitioner reserving a right of way and a water-right from a well on B schedule. The trial court had partitioned the B schedule property and the petitioner contended that she should be impleaded to protect her reserved rights. The court below dismissed Exts P4 and P5, and the petitioner challenged those orders in this petition. The High Court held that the petitioner is not a necessary party to the partition suit since she does not have a direct right to the B schedule property; her rights are limited to a Will-reserved interest to be protected via independent proceedings or appeals. The petition was dismissed. The court noted that the rights can be pursued in OS 234/2016 or on appeal, and did not disturb the lower court’s orders. This decision underscores that a person with only Will-reserved rights may not automatically be impleaded in a partition suit.

Provisions of Law Cited

Order 1 Rule 10(2) CPCArticle 227, Constitution of India

Legal Doctrines & Maxims

  • A person with even a fractional interest in property can be impleaded in a partition suit (as argued by some authorities) but this does not compel impleadment where the interest is only reserved rights under a Will and not a direct participatory right in the subject-m matter of the partition.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contended that she should be impleaded in IA 2352/2016 in OS 6/2014 to protect rights reserved under the Will—specifically a right of way through the A schedule property and a water-right from the well on the B schedule. She argued that Ext P4 (order) dismissing impleadment and Ext P5 (review) were erroneous and sought relief under Order 1 Rule 10(2) CPC and Article 227 of the Constitution of India to safeguard her reserved rights in the Will. The petition asserted that the partition proceedings could adversely affect her interests because her rights are intertwined with the Will’s provisions and should be protected in the same proceedings.

Contentions of Respondents

The respondents argued that the petitioner has no direct right in the B schedule property, only a Will-reserved right, such as the right to draw water and use a pathway, which does not entitle her to be impleaded in the partition suit. They contended that Exts P4 and P5 were rightly decided, and that a declaration of her Will-based rights cannot be granted in a suit for partition. They asserted that the petitioner can pursue her grievances in the appeal arising from OS 234/2016 or in independent proceedings, and emphasized that the petition under Article 227 was not warranted to unsettle the trial court’s order.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Beepathumma v. Thankamma1993(2) KLT 152Mentioned OnlyCited to illustrate a principle about parties with fractional interests, but the court did not rely on it to compel impleadment in this case.
Chellappan v. Krishnankutty2001(3) KLT 403Mentioned OnlyCited as supporting authorities for impleading rights, but not adopted as controlling in the present decision.
Vishnu Namboothiri v. Sankara Pillai and others1968 KLT 692Mentioned OnlyCited in the argument as part of the line of authorities on fractional interests; not applied by the High Court to overturn the order.
Madhavan v. Kalliani2000(2) KLT 837Mentioned OnlyQuoted for the same proposition in the argument; the High Court, however, did not rely on it to alter the outcome.

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Extracted Judgment Text

Exact text extracted from official judgment records.

1 O.P (C)No.2129 of 2017 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944 ``` ## **`OP(C) NO. 2129 OF 2017`** ``` AGAINST THE ORDER/JUDGMENT IN IA 2352/2016 AND IN IA 59/2017 IN IA IN 2352/2016 IN OS 6/2014 OF ADDITIONAL SUB COURT, ``` ## **`IRINJALAKUDA`** ## **`PETITIONER/S:`** ``` SANTHOSAVALLY,AGED 52 YEARS W/O. LATE VISWAMBARAN AGED 52, RESIDING AT MOTHAYIL HOUSE,ANNALLUR VILLAGE, ANAPARA DESOM, CHALAKUDY TALUK. BY ADV SRI.T.N.MANOJ ``` ## **`RESPONDENT/S:`** - `1 VILASINI,W/O. LATE EZHAPULLY VEETTIL PADMANABHAN, KUPPAN BAZAR DESOM,PUTHENCHIRA VILLAGE, PUTHENCHIRA P.O, TRISSUR DISTRICT - 680 307.` - `2 AMMINI,D/O. MOTHAYIL KUNJAYYAPPAN, PRESENTLY C/O. BINDU,W/O. ATHIYARATH VEETTIL SUBRAMANIAN, KUTTIKAT DESOM,PARIYARAM VILLAGE, TRISSUR DISTRICT - 680 307.` - `3 CHANDRAVATHY,W/O. KATHIKULAM VEETTIL, PUSHPAN, MALA DESOM,VADAMA VILLAGE, TRISSUR DISTRICT - 680 307.` - `4 SULOCHANA,W/O.THAYYIL VEETTIL PRABHAKARAN, CHOWKA DESOM,ELINJIPRA VILLAGE, CHALAKUDY TALUK, TRISSUR DISTRICT - 680 307.` - `5 SUSHEELA,W/O. KATTUPARAMBIL VEETTIL KUMARAN, MATHEW NAGAR,WEST CHALAKUDY DESOM, TRISSUR DISTRICT, - 680 307.` - `6 ADDL. BINDU.,W/O ATHIYARATHU VEETTIL SUBRAMANIAN, KUTTIKAD DESOM, PARIYARAM VILLAGE 680724` - `7 ADDL. RATHY,D/O RAMACHANDRAN, VALIYAPARAMBIL, AYYAPPANKAVU, KOTTENELLUR VILLAGE, THUMBOOR, TRISSUR DISTRICT 680 683` - `(ADDITIONAL R6 & R7 IMPLEADED VIDE ORDER DATED 06.07.2022 IN I.A.NO:1/2020)` - `BY ADV G.SREEKUMAR (CHELUR), - R1, R3, R4 AND ADDL R6 AND R7` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P (C)No.2129 of 2017 ## **C.S DIAS,J.** **--------------------------O.P (C)No.2129 of 2017** **----------------------------Dated this the 11[th] day of July, 2022.** ## **JUDGMENT** The original petition is filed to set aside the order in IA No.2352/2016 (Ext P4) and the order in IA No.59/2017 in IA No.2352/2016 (Ext P5) both in IA No.1736/2015 in OS No.6/2014 of the Court of the Additional Subordinate Judge, Irinjalakkuda. 2. The petitioner’s case, in brief, relevant for the determination of the original petition is that, she is the petitioner in Exts P4 and P5, which was filed under Order 1 Rule 10(2) of the Code of the Civil Procedure to get herself impleaded in IA No.1736/2015 in OS No.6/2014 and to review Ext P4 order. She has averred that the respondents have filed IA No.1736/2015 to appoint an Advocate Commissioner to identify, measure and demarcate the plaint schedule properties and pass a final decree in the suit. The respondents are the sisters 3 O.P (C)No.2129 of 2017 of the late husband of the petitioner. Pending the original petition, the second respondent died and her legal representatives are impleaded as additional respondents 6 and 7. The petitioner’s father-in-law and the father of the respondents had by Will deed No.60/1983 bequeathed the property described as ‘A’ schedule in the Will in favour of the petitioner’s late husband and the property described in ‘B’ schedule in the Will in favour of the respondents 1 to 5. The respondents 1 to 4 have filed the suit, seeking partition of ‘B’ schedule property, against the fifth respondent, who refused their request for partition. A preliminary decree was passed on 25.10.2014, ordering the partition of ‘B’ schedule property in the Will in five shares. Thereafter, the respondents 1 to 4 have filed IA No.1736/2015 to pass the final decree. As per the Will, the petitioner has a right of way through the pathway lying on the eastern side of ‘A’ schedule property and also the right to draw water from the well situated in the ‘B’ schedule property of the Will. When the petitioner 4 O.P (C)No.2129 of 2017 attempted to draw water from the well, the same was objected to by the respondents. Hence, the petitioner filed OS No.234/2016 before the Court of the Munsiff, Chalakkudy, for a decree of prohibitory injunction and other ancillary reliefs. Later, the suit was amended, seeking a declaration of the petitioner’s above rights reserved in the Will. The respondents had filed Ext P3 written statement, refuting the allegations in the suit and, inter-alia, contending that the petitioner has to get herself impleaded in the suit for partition and not file an independent suit. Then, the petitioner filed the above application to get herself impleaded in IA No.2352/2016 in OS No.6/2014. The court below, by the impugned Ext P4 order, dismissed the application. Thereafter, the petitioner’s application for review of Ext P4 order was also dismissed by Ext P5 order. Exts P4 and P5 orders are erroneous and wrong. Hence, the original petition. 3. Heard; Sri.T.N Manoj, the learned counsel appearing for the petitioner and Sri. G.Sreekumar 5 O.P (C)No.2129 of 2017 (Chelur), the learned counsel appearing for the respondents 1,3,4 and additional respondents 6 and 7. 4. Sri.T.N Manoj argued that Exts P4 and P5 orders are unsustainable in law. He reiterated the grounds in the original petition and placed emphasis on the decisions of this Court in **Beepathumma v. Thankamma [1993(2) KLT 152], Chellappan v. Krishnankutty [2001 (3) KLT 403], Vishnu Namboothiri v. Sankara Pillai and others [1968 KLT** **692] and Madhavan v. Kalliani [2000(2) KLT 837]** to canvass the position that if a person has even a fraction of interest in a property, he can get impleaded in a suit for partition. Therefore, Ext P4 order is wrong. 5. The point that arises for consideration in the original petition is that whether there is any illegality or irregularity in Exts P4 and P5 orders passed by the court below. 6. Undisputedly, the respondents 1 to 4 had filed O.S No.6/2014 against the fifth respondent for partition of plaint ‘B’ schedule property described in the Will, on 6 O.P (C)No.2129 of 2017 the ground that the fifth respondent had refused their request for partition of the property. Admittedly, the petitioner does not have a right on the plaint ‘B’ schedule property, other than for the right reserved to draw water from the well situated in the B’ schedule property and use the pathway lying on the eastern side. The Court of the Subordinate Judge had allowed OS No.6/2014, by passing a preliminary decree. Thereafter, the respondents 1 to 4 have filed an application for passing of the final decree. It was at that stage that the petitioner alleged that the respondents had restrained her from drawing water from the well. Immediately, she filed OS No.234/2016 for injunction, to enforce her right under the Will, and later amended the suit for declaration of her right. Undisputedly the suit was dismissed and now the matter is pending in appeal. Then wisdom dawned on the petitioner that she can get her right enforced in the suit for partition filed between the respondents. The petitioner does not have a case that she has any right in plaint ‘B’ schedule property, 7 ## O.P (C)No.2129 of 2017 but only wants her right reserved as per Will to be protected , i.e., to permit her to continue to draw water from the well situated in the B schedule property and use the pathway. Now even assuming that the petitioner can get herself impleaded, she cannot get a declaration of her right reserved as per the Will in a suit for partition. Furthermore, the decree of partition to be passed in OS No.6/2014 can only be subject to the rights and reservations in the Will. By no stretch of imagination can the petitioner get a relief indirectly, i.e., a decree of declaration in OS No.6/2014, which she has initially failed to get directly in OS No.234/2016. The petitioner is a stranger in the suit for partition, except for her right reserved in the Will mentioned above. The alleged action of the respondents is an infringement of the petitioner’s independent and individual civil right, which will have to be independently agitated and not in the manner presently sought for. 7. The court below, by the impugned Ext P4 order, has rightly concluded that the petitioner is not a 8 O.P (C)No.2129 of 2017 necessary party to be impleaded in the suit for partition. The right sought to be exercised by the petitioner is independent and distinct from the dispute between the respondents in OS No.6/2014. There is no error or illegality in Exts P4 and P5 orders passed by the court below, warranting interference by this Court under Article 227 of the Constitution of India. Without prejudice to the right of the petitioner to agitate her grievances in the appeal arising out of OS No.234/2016, this original petition is dismissed. ## **sd/-** sks/11.07.2022 **C.S.DIAS, JUDGE** 9 O.P (C)No.2129 of 2017 ## **`APPENDIX OF OP(C) 2129/2017`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF IA 2352/16 FILED IN OS 6/14 BEFORE THE SUB COURT AT IRINJALAKUDA. EXHIBIT P2TRUE COPY OF THE WILL DATED 5/8/1983 NO 60/83. EXHIBIT P3TRUE COPY OF THE WRITTEN STATEMENT IN OS 234/16 OF THE MUNSIFF COURT AT CHALAKUDY. EXHIBIT P4TRUE COPY OF ORDER IN IA 2352/16 IN OS 6/14 OF THE SUB COURT AT IRINJALAKUDA. EXHIBIT P5TRUE COPY OF ORDER IN IA 59/17 IN OS 6/14 OF THE SUB COURT AT IRINJALAKUDA. ```