Soman v. Shailaja and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR** **MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933** **RSA.No. 505 of 2011(B)** **--------------------------------** **[AS.NO.62/2009 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR, OS.NO. 457/1999 OF MUNSIFF'S COURT,NORTH PARAVUR]** **....................** ## **APPELLANT/APPELLANT IN A.S. NO. 69/2009/DEFENDANT IN O.S. NO.457/2009:** **-----------------------------------------------------------------------------------------------------------------** **SOMAN, S/O. SIVARAMAN, THOTTAYAPPILLY, THUSHATH, VALLUVALLY KARA, KOTTUVALLY VILLAGE.** **BY ADV. SRI.M.P.RAMNATH.** ## **RESPONDENTS/RESPONDENTS IN A.S. NO. 62/2009/PLAINTIFFS IN OS.NO.457/1999:** **------------------------------------------------------------------------------------------------------------------------** **1. SHAILAJA, D/O. SIVARAMAN, THOTTAYAPPILLY CHARAKATH MURI, MOOTHUKUNNAM VILLAGE, MOOTHUKUNNAM.P.O., - 683 516.** **2. SUKUMARAN, S/O. SIVARAMAN, THOTTAYAPPILLY, CHARAKATH MURI, MOOTHUKUNNAM VILLAGE, MOOTHUKUNNAM.P.O – 683 516.** **3. AJITHAN, S/O. SIVARAMAN, THOTTAYAPPILLY, CHARAKATH MURI, MOOTHUKUNNAM VILLAGE, DO. DO.** **4. SARALA, D/O. SIVARAMAN, THOTTAYAPPILLY, CHARAKATH MURI, MOOTHUKUNNAM VILLAGE DO. DO.** **5. SEETHA, D/O. SIVARAMAN, THOTTAYAPPILLY, CHARAKATH MURI, MOOTHUKUNNAM VILLAGE, DO. DO.** **6. SINDHU, D/O. SIVARAMAN, THOTTAYAPPILLY, CHARAKATH MURI, MOOTHUKUNNAM VILLAGE, DO. DO.** **7. SIDHARTHAN, S/O. SIVARAMAN, THOTTAYAPPILLY, CHARAKATH MURI, MOOTHUKUNNAM VILLAGE, DO. DO.** **BY** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/05/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** ## **M.SASIDHARAN NAMBIAR,J.** =========================== R.S.A. No. 505 OF 2011 =========================== Dated this the 30th day of May,2011 ## JUDGMENT A preliminary decree for partition was passed on 28.2.2003. Subsequently I.A.549/2008 was filed for a supplementary preliminary decree contending that subsequent to the passing of final decree the mother died and her rights devolved on all the parties and it is to be divided equally. By the supplementary preliminary decree dated 6.10.2008, the 1/9 share due to the deceased first plaintiff mother was divided and allotted to all the children. First defendant filed A.S.62/2009 before the District Court, North Paravur challenging the supplementary preliminary decree. It was dismissed by the learned District Judge on 30.8.2010. Second appeal is filed thereafter not only against the R.S.A.505/2011 2 supplementary preliminary decree as confirmed by the first appellate court but against the preliminary decree dated 28.2.2003 which was not challenged by filing a first appeal. 2. Learned counsel appearing for the appellant was heard. 3. Learned counsel argued that though a preliminary decree was passed in 2003, it remains only a preliminary decree as no application for final decree was passed. It was pointed out that by the supplementary preliminary decree, the original preliminary decree was modified and therefore appellant is entitled to challenge not only the supplementary preliminary decree, but also the original preliminary decree and therefore the second appeal is maintainable as against both. Learned counsel then submitted that a preliminary decree in a suit for partition is not contemplated under the Code of Civil Procedure or the relevant provisions of the Kerala Civil Rules of practice. The argument is that under rule 232 R.S.A.505/2011 3 the preliminary decree contemplated is only in respect of suits were accounts are to be taken as provided under Rule 199 to 210 and hence a preliminary decree is not contemplated under the Code in a suit for partition of accounts are not to be taken. It is therefore argued that the decree of 2003 cannot be treated as a decree which is to be challenged under 97 of the Code of Civil Procedure and therefore appellant is entitled to challenge the said decree along with the supplementary preliminary decree. 4. On hearing the learned counsel, I cannot accept both the submissions. In a suit for partition, a preliminary decree is contemplated. Rule 235 of Civil Rules of Practice provide for passing of a final decree in a suit for partition. There cannot be a final decree without a preliminary decree. Learned counsel himself concedes that in all partition suits, a preliminary decree is passed and thereafter a final decree. R.S.A.505/2011 4 5. The suit for partition was instituted in 1999. Appellant had engaged a counsel. By the preliminary decree dated 28.2.2003, the properties were found to be available for partition and are held to be divided in 9 equal shares. It provides for allotment of 8 shares jointly to the plaintiffs and the second defendant and one share to the appellant. Subsequently the mother, first plaintiff died. In 2008 I.A.549/2008 was filed to divide that share. By supplementary preliminary decree dated 6.10.2008 that share was divided into 8 shares and allotted to all the children including the appellant. 6.The preliminary decree dated 28.2.2003 was not challenged. First appeal is filed challenging only the supplementary preliminary decree dated 6.10.2008. By that supplementary preliminary decree, 1/9 share allotted to the mother under the earlier preliminary decree was divided and allotted to all the children. By challenging that supplementary preliminary decree, appellant is R.S.A.505/2011 5 entitled to challenge only the said allotment and not the preliminary decree dated 28.2.2003 whereunder the properties are found to be available for partition and the shares due to each sharer was fixed. Appellant has no case that the share due to the mother is not to be divided equally between the children. Hence there is no challenge against the supplementary preliminary decree. 7. The argument of the learned counsel is that as is clear from the judgment in O.S.457/1999 whereunder a preliminary decree was passed, appellant set ex parte as the counsel who appeared for the appellant relinquished the vakalath and in such circumstances the decree passed without considering the contentions of the appellant is illegal. Learned counsel argued that the very allegation in the plaint was that plaint B schedule property was purchased in the name of first defendant using the funds of the family and while passing the preliminary decree, that aspect was not considered on merits. Learned counsel relied on R.S.A.505/2011 6 the decision of a learned single Judge of this court in **Joseph Philip v. Mariamma Chacko (1987 (2) KLT 924)** and argued that in such circumstances the principles laid down therein is to be applied. Even if it is taken that the preliminary decree was passed not considering the contentions raised by the appellant, the remedy of the appellant is to challenge the preliminary decree. When that preliminary decree has become final, he cannot challenge the said preliminary decree, making use of a supplementary preliminary decree. In such circumstances, no substantial question of law is involved. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006