Shailaja Jayakrishnan v. Sunil N T and others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945 ``` ## `OP(C) NO. 2471 OF 2023` ``` ORDER DATED 09.10.2023 IN FDIA 946/2019 IN OS 762/2013 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL COURT, CHAVAKKAD ``` ## `PETITIONER(S)/SUPLLEMENTAL 10TH RESPONDENT IN FDIA:` ``` 1SHAILAJA JAYAKRISHNAN AGED 62 YEARS D/O GIRIJAKUMAR, AGED 62 YEARS 46/12-63 AISWARYA, KOODITHODU, (WEST), KOTTOLI ROAD, P O KOTTOLI, KOZHIKLODE DISTRICT, PIN - 673016 BY ADVS. M.K.SUMOD VIDYA M.K. RAJ CAROLIN V. THUSHARA.K ``` ``` RESPONDENT(S)/ PETITIONERS 1 TO 3 & RESPONDENTS 1,2,4 TO 9 & 11 TO 14 IN ``` ``` FDIA: ``` ``` 1SUNIL N T AGED 55 YEARS S/O LATE THILAKAN & LATE BHAVANI, NALUMAKKAL HOUSE, FLOOR NO. 4/7, JAYAPRAKASH STREET, VIJAYALAKSHMI PURAM, AABATHOOR, CHENNAI, PIN - 600053 2SUDHEER AGED 53 YEARS S/O LATE THILAKAN & LATE BHAVANI, RESIDING AT NALUMAKKAL HOUSE, FLOOR NO. 4/7, JAYAPRAKASH STREET, VIJAYALAKSHMIPURAM, AABATHOOR, CHENNAI, PIN - 600053 3SUSEEL KUMAR AGED 52 YEARS S/O LATE THILAKAN & LATE BHAVANI, RESIDING AT NALUMAKKAL HOUSE, FLOOR NO. 4/7, JAYAPRAKASH STREET, VIJAYALAKSHMIPURAM, AABATHOOR, CHENNAI, PIN - 600053 4C K SOMANATHAN AGED 70 YEARS S/O CHERTHEDATHU KELU, RESIDING AT MINALOOR VILLAGE, DESOM, THALAPPILLY TALUK, NOW RESIDING AT TRIPRAYAR, NATTIKA P O, CHAVAKKAD, THRISSUR DISTRICT, PIN - 680566 5GOPINATHAN AGED 69 YEARS S/O KELU, RESIDING AT CHERTHEDATHU HOUSE, THRIPRAYAR, ``` ``` O.P.(C.) No.2471 of 2023 ``` 2 ``` VALAPPAD, CHAVAKKAD, THRISSUR DISTRICT, PIN - 680566 6GIRIJA KUMAR (DIED) D/O KELU, CHERTHEDATHU HOUSE, W/O KUMARAN, SREEKUMAR ESTATE, KANBEYIL SUNDIKKOPPA VILLAGE, KOORG (DT.) KARNATAKA, PIN - 571237 7URMILA BALAKRISHNAN AGED 76 YEARS D/O KELU & W/O BALAKRISHNAN, CHERTHEDATHU HOUSE, NOW RESIDING AT PILLATTIL HOUSE, POOVATHOOR DEVOM, CHAVAKKAD, THRISSUR DISTRICT, PIN - 680508 *8* JESHI (DELETED) AGED 42 YEARS D/O LATE JAYAPALAN, CHERTHEDATHU HOUSE, WADAKKANCHERY P O, THRISSUR DISTRICT (DELETED), PIN - 680582 *9* JOSHY (DELETED) AGED 36 YEARS S/O LATE JAYAPALAN, NOW RESIDING AT CHERTHEDATHU HOUSE, WADAKKANCHERY P O, THRISSUR (DELETED), PIN - 680582 ``` - `10 KASTHURI BHAI AGED 74 YEARS W/O VIJAYANARAYANAN, KRISHNANKRIPA, NEAR S K POTTEKKADU ART GALLERY, PUTHIYARA, KOZHIKODE, PIN - 673004` - `11 SARASWATHI BHAI AGED 73 YEARS W/O HARIDASAN, RETIRED GENERAL SURGEON, SARADA HOSPITAL, KOYILANDI, KOZHIKODE DISTRICT -, PIN - 673305` - `12 VALSAN AGED 70 YEARS S/O EDATHIL KARUNAKARAN, CHALAPURAM, KOZHIKKODE, PIN - 673002` - `13 SASIKALA V K AGED 59 YEARS D/O LATE GIRIJA KUMAR, HOUSE NO. 30/1523 - A, PALLATHU KUZHIYIL, CPM PARTY OFFICE ROAD, THANAL ROAD, UMMALAKATHOOR, VELLIPARAMBU, P O MEDICAL COLLEGE, KOZHIKODE, PIN - 673008` - `14 SREEKUMAR V K AGED 59 YEARS SREEKUMAR ESTATE, KANBAINE, P O SUNDICOPA, KODAK NORTH, KARNATAKA, PIN - 571237` - `15 BINDU K D/O LATE DAMODARAN K K, AGE NOT KNOWN, 2ND CROSS PENSION MOHALLA, CHIKKAMANGALURU, KARNATAKA, PIN - 577101` - `16 YASHAS K V AGED 28 YEARS` ``` S/O LATE SREEVALSAN, 2ND CROSS PENSION MOHALLA, ``` ``` O.P.(C.) No.2471 of 2023 ``` 3 ## `CHIKKAMANGALURU, KARNATAKA` ``` * (RESPONDENTS 8 A ND 9 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 20.12.2023 IN I.A. N.O. 1/2023), PIN - 577101 BY ADVS. RAMNATH M.P SANEESH KUMAR K K.B.SIVARAMAKRISHNAN(K/346/1992) ANIRUDH N.R.(K/1066/2020) P.RAJESH (KOTTAKKAL)(K/269/2007) K.J.SEBASTIAN(S-1054) M.VARGHESE VARGHESE(K/1014/2003) UMA R.KAMATH(K/622/2006) S.SANDHYA(K/81/2012) SHALU VARGHESE(K/322/2009) S.DEEPAK(K/733/2012) ANTONY THARIAN(K/000479/2018) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2024, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C.) No.2471 of 2023 ``` 4 ## **C.JAYACHANDRAN, J. -----------------------------------O.P.(C.) No.2471 of 2023 -----------------------------------Dated this the 22[nd] day of February, 2024** ## **JUDGMENT** This Original Petition is carried by the supplemental 10[th] respondent in the final decree application No.946/2019 pending before the Sub Court, Chavakkad, which arises from the suit, O.S. No.762/2013. The petitioner is aggrieved by Ext.P6 order, a peculiar one with the heading “Order as to the genuineness of Ext.B1 Will dated 26.05.2018 and B4 agreement executed by Girija Kumar and FDIA No.946/2019 in O.S. No.762/2013.” 2. This Court will now take stock of the essential facts. A suit for partition instituted by one C.K.Somanathan (4[th] respondent herein) against his siblings, culminated in a preliminary decree dated 09.01.2018, marked herein as Ext.P2. A final decree ``` O.P.(C.) No.2471 of 2023 ``` 5 application was preferred on 11.07.2019. While so, Smt.Girija Kumar (6[th] defendant in the suit and the 3[rd] defendant in the final decree application) passed away. Pursuant thereto, the final decree applicant preferred an application to implead the legal heirs, one among whom, the 13[th] respondent herein, propounded a Will exclusively unto himself. The claim under the Will was opposed by one among the legal heirs, the 10[th] respondent in the FDIA and the petitioner herein. A counter was also filed on his behalf. According to the 10[th] respondent/petitioner herein, the property allotted to Smt.Girija Kumar should devolve as per the law of inheritance. It is in such circumstances that the impugned Ext.P6 order was passed by the Sub Court, Chavakkad with the afore referred caption ‘adjudicating on the genuineness of the Will’, whereby it was found that the Will was genuine. 3. Now, the grievance of the petitioner is that except by virtue of this Original Petition, Ext.P6 order ``` O.P.(C.) No.2471 of 2023 ``` 6 cannot be subjected to any challenge, inasmuch as it is an order passed in a final decree application. 4. Heard the learned counsel for the petitioner, learned counsel for the 1[st] respondent and the 13[th] respondent. Respondent 8 and 9 were deleted from the array of parties, on the premise that they are not contesting respondents. Rest of the respondents have no representation, though served. 5. Having heard the learned counsel for the respective parties, this Court is not in agreement with the course adopted by the learned Sub Judge in passing Ex.P6 order. This Court is of the opinion that once the partition suit has resulted in a preliminary decree, which became final, and a final decree application was preferred therefrom, the property should have been divided in terms of the preliminary decree between the respective sharers. The death of one such sharer cannot result in passing an order like Ext.P6. Instead, the ideal course should have been to relegate the legal heirs of ``` O.P.(C.) No.2471 of 2023 ``` 7 the deceased sharer to resolve their internecine disputes in a separate proceeding, after effecting partition in terms of the preliminary decree. 6. Inasmuch as Ext.P6 order is passed, it is not in the interest of any of the parties to turn the clock back and say that Ext.P6 was unwarranted and therefore, illegal. None of the parties before this Court is canvassing such a position. This Court should bear in mind an important aspect that the petitioner herein should be afforded with an opportunity to challenge the correctness of Ext.P6 order. All the same, this Court cannot permit itself, which wields jurisdiction under Article 227, to a Court of a regular appeal and to treat the instant Original Petition as an appeal preferred from the order. The jurisdiction, as it is well settled, is quite limited under Article 227. In the circumstances, the practical course open is to treat Ext.P6 as a supplemental preliminary decree, insofar as the share of late Smt. Girija Kumar under the preliminary decree ``` O.P.(C.) No.2471 of 2023 ``` 8 is concerned. By adopting such a course, the petitioner herein will get an opportunity to prefer an appeal against the deemed supplemental preliminary decree. 7. In the circumstances, this Court choose not to interfere with Ext.P6 order for the time being, but would hold that Ext.P6 is liable to be treated as a supplemental preliminary decree. It will be open for the petitioner herein to avail such remedy available to the petitioner as per law as against Ext.P6 order, treating it a supplemental preliminary decree. It is clarified that respondents 1 to 3, who are the applicants in the final decree application shall not be tied down, until the issues as between the legal heirs of late Smt.Girija Kumar, as regards her share as per Ext.P2 preliminary decree is adjudicated and resolved. This Court also takes into account the fact that preliminary decree itself was passed pursuant to a compromise entered into by and between all the parties (except a few), including late Smt.Girija Kumar, who was then alive. Therefore, ``` O.P.(C.) No.2471 of 2023 ``` 9 there cannot be a quarrel with respect to the share of respondent 1 to 3, the final decree applicants. As per the compromise sketch, plot no.D has been allotted to respondents 1 to 3, which compromise forms part of the preliminary decree. Plot no.A has been allotted to the share of late Smt.Girija Kumar, over which alone, the dispute by and between the petitioner and the legal heirs of Smt.Girija Kumar, including 13[th] respondent has to be confined. Though, the learned counsel for the petitioner would submit that the preliminary decree employees the expression ‘as far as possible’ in the context of adhering to the compromise agreement and plan, learned counsel would simultaneously submit that the petitioner has no quarrel in allotting plot no.D to the final decree applicants, who are respondents 1 to 3 herein. 8. In the circumstances, this Original Petition is disposed of treating Ext.P6 as a supplemental preliminary decree, leaving open the right of the ``` O.P.(C.) No.2471 of 2023 ``` 10 petitioner to carry such other remedy as against Ext.P6 as per law and also instructing the final decree Court to proceed with the final decree application by allotting the share of respondents 1 to 3, who are the final decree applicants before that Court. 9. In adopting this course, this Court draws force from the judgment of the Hon'ble Supreme Court in Phoolchand and others v. Gopal Lal [AIR 1967 SC 1470], especially in the observation made at the beginning of paragraph no.7 of the judgment, which speaks of the necessity to pass supplemental preliminary decrees in partition suits. A doubt would naturally pop up that such supplemental preliminary decree can be passed only when augmentation of shares occasion. However, this Court notice that augmentation of shares specified in paragraph no.7 is only one instance - and not the only instance - where the Court can pass supplemental preliminary decrees. In the given case, the facts and circumstances all the ``` O.P.(C.) No.2471 of 2023 ``` 11 more necessitates the passing of such a supplemental preliminary decree; rather to treat Ext.P6 as such. Else, the petitioner will loose an important right of an appeal against the findings in Ext.P6, which, needless to say, affects his rights substantially. This Original Petition is disposed of accordingly. **Sd/-** **C. JAYACHANDRAN** **JUDGE** SKP/22-02 ``` O.P.(C.) No.2471 of 2023 ``` 12 ## `APPENDIX OF OP(C) 2471/2023` ``` PETITIONER’S EXHIBITS: EXHIBIT P1TRUE COPY OF THE JUDGMENT IN OS 762/2013 DATED 09/01/2018 OF THE SUB COURT, CHAVAKKAD EXHIBIT P2TRUE COPY OF THE PRELIMINARY DECREE IN OS 762/2013 DATED 09/01/2018 OF THE SUB COURT, CHAVAKKAD EXHIBIT P3TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE DEFENDANT NOS. 1 TO 3 RESULTING TO FDIA 946/2019 IN OS 762/2013 OF THE SUB COURT, CHAVAKKAD DATED 11/07/2019 EXHIBIT P4TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 11TH RESPONDENT IN THE FINAL DECREE PROCEEDINGS DATED 12/12/2022 IN FDIA 946/2019 IN OS 762/2013 OF THE SUB COURT CHAVAKKAD EXHIBIT P5TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 10TH RESPONDENT/PETITIONER HEREIN IN FDIA 946/2019 IN OS 762/2013 OF THE SUB COURT CHAVAKKAD DATED 28/02/2023 EXHIBIT P6CERTIFIED COPY OF THE ORDER DATED 09/10/2023 IN FDIA NO. 946/2019 OF OS 762/2013 OF THE SUB COURT, CHAVAKKAD ``` ``` RESPONDENTS' EXHIBITS:NIL ``` ``` TRUE COPY ``` ``` P.A. TO JUDGE ```