T. Shyamala v. Sudha Pavithran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA,** ## **1943** ## **OP(C) NO. 1462 OF 2021** **OS 184/2010 OF PRINCIPAL MUNSIFF COURT, KANNUR** ## **PETITIONER/S:** T.SHYAMALA, AGED 85 YEARS D/O.JANAKI, THEKKAYIL HOUSE, CHIRAKKAL AMSOM DESOM, ALAVIL P.O., KANNUR-670 008. BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) E.MOHAMMED SHAFI ## **RESPONDENT/S:** 1 SUDHA PAVITHRAN, AGED 60 YEARS W/O.LATE PAVITHRAN, KALATHIL HOUSE, ALAPAT ROAD, RAVIPURAM, ERNAKULAM-682 016. 2 SUBHA PAVITHRAN, AGED 34 YEARS D/O.LATE PAVITHRAN, KALATHIL HOUSE, ALAPAT ROAD, RAVIPURAM, ERNAKULAM-682 016. 3 SAMRISH T.PAVITHRAN, AGED 31 YEARS S/O.LATE PAVITHRAN, KALATHIL HOUSE, ALAPAT ROAD, RAVIPURAM, ERNAKULAM-682 016. 4 SATHYAPRAKASH, AGED 67 YEARS S/O.JANAKI, THEKKAYIL HOUSE, CHIRAKKAL AMSOM DESOM, ALAVIL P.O., KANNUR-670 008. 5 VANAJA LAXMAN, AGED 83 YEARS W/O.LAXMAN, MANASA SAROVAR, ROOM NO.2, CHAITHANYA NAGAR, IIT PAWAI, MUMBAI-400 076. 6 DINRAJ LAXMAN, AGED 42 YEARS S/O.LAXMAN, MANASA SAROVAR, ROOM NO.2, CHAITHANYA NAGAR, IIT PAWAI, MUMBAI-400 076. O.P.(C) No.1462 of 2021 -2- 7 DINESH LAXMAN, AGED 40 YEARS S/O.LAXMAN, MANASA SAROVAR, ROOM NO.2, CHAITHANYA NAGAR, IIT PAWAI, MUMBAI-400 076. 8 RUMILA, AGED 59 YEARS W/O.SATHEESHAN, #58, CK GARDEN, THEJUS, WHEELER ROAD, EXT.CROSS, NEAR PERIYAKA, MEDICAL STORE, BANGALORE-560 084. 9 PRITHVIN, AGED 35 YEARS S/O.SATHEESHAN, #58, CK GARDEN, THEJUS, WHEELER ROAD, EXT.CROSS, NEAR PERIYAKA, MEDICAL STORE, BANGALORE-560 084. 10 PRASHANTH, AGED 35 YEARS S/O.SATHEESHAN, #58, CK GARDEN, THEJUS, WHEELER ROAD, EXT.CROSS, NEAR PERIYAKA, MEDICAL STORE, BANGALORE-560 084. 11 SUJAYA LAKSHMANAN, AGED 67 YEARS D/O.RADHA, RADHA NIVAS, KARSHAKA ROAD, 3RD CROSS LINE, ERNAKULAM-682 016. 12 T.SHOBHANA, AGED 65 YEARS RADHA NIVAS, KARSHAKA ROAD, 3RD CROSS LINE, ERNAKULAM-682 016. 13 PREMACHANDRAN.C.T., AGED 63 YEARS S/O.RADHA, RADHA NIVAS, KARSHAKA ROAD, 3RD CROSS LINE, ERNAKULAM-682 016. 14 SHEELA JAYARAJ, AGED 61 YEARS D/O.RADHA, RADHA NIVAS, KARSHAKA ROAD, 3RD CROSS LINE, ERNAKULAM-682 016. 15 SUSHIL CHANDRAN, AGED 56 YEARS S/O.RADHA, RADHA NIVAS, KARSHAKA ROAD, 3RD CROSS LINE, ERNAKULAM-682 016. 16 SUNIL KUMAR, AGED 50 YEARS S/O.RADHA, RADHA NIVAS, KARSHAKA ROAD, 3RD CROSS LINE, ERNAKULAM-682 016. O.P.(C) No.1462 of 2021 -3- 17 SUBHIL.T., AGED 39 YEARS S/O.LATE PAVITHRAN, KALATHIL HOUSE, ALAPAT ROAD, RAVIPURAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SAMRISH T.PAVITHRAN, S/O.LATE PAVITHRAN, KALATHIL HOUSE, ALAPAT ROAD, RAVIPURAM, ERNAKULAM-682 016. 18 GEETHA JAYACHANDRAN, D/O.LEELA, JAYA GEETH, KANAKAVALLI ROAD, CHOVVA P.O., KANNUR-670 006. - 19 REETHA MOHANAN, D/O.LEELA, KUMAR NIVAS, MANNA, VALAPATTANAM, KANNUR DISTRICT. - 20 LATHISH KUMAR, S/O.LEELA, LAKSHMISREE, MANNA, VALAPATTANAM, KANNUR-670 010. - 21 RAJITHA VINOD, D/O.LEELA, ANJANA, MANAL, CHALAD P.O., KANNUR670 014. - 22 REENA SUDHAKARAN, D/O.LEELA, RHYTHM, KOKKENPARA ROAD, PALLIKUNNU P.O., KANNUR-670 004. - 23 SEENA.T.K., S/623, NEAR ST.VINCENT GIRLS HIGH SCHOOL, ERANHIPALAM P.O., SV COLONY ROAD, KOZHIKODE-673 006. - 24 RENUKA.M.T., W/O.LATE JAYAKRISHNAN, GEETHALAYAM, ARAMKOTTAM, AZHIKODE SOUTH P.O., KANNUR-670 009. - 25 SHIKHA JAI, D/O.LATE JAYAKRISHNAN, VISHAKHA, NEAR CHALAD TEMPLE, CHALAD P.O., KANNUR-670 014. - 26 MEKHA SUJITH, D/O.LATE JAYAKRISHNAN, 188, MUNIRKA ENCLAVE, OPP.VASANTH VIHAR POLICE STATION, NEW DELHI-110 067. R1 TO R6, R11, R13, R14, R18 TO R25 BY ADVS. P.JAYABAL MENON REKHA AGARWAL **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON** - **16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C) No.1462 of 2021 -4- ## **JUDGMENT** Dated this the 16[th] day of November, 2021 The petitioner is the 5[th] respondent in E.P.No.33 of 2008 filed for getting delivery of the property in O.S.No.184 of 2010 of the Principal Munsiff's Court, Kannur. In the suit for partition, the petitioner was the first defendant and was allotted his share. Aggrieved by the preliminary decree, the petitioner preferred appeal, but without success. The delivery based on the final decree was opposed by the petitioner contending that the decree was obtained, without arraigning certain persons having right over the property. Raising such contention and seeking to implead those persons after re-opening the preliminary decree, petitioner filed E.A.No.150 of 2021 under Section 47 of CPC. By Ext.P4 order, court below dismissed the application holding that an O.P.(C) No.1462 of 2021 -5- impleadment of persons who are not parties to the suit and determination of their shares cannot be entertained at the execution stage. 2. Heard Sri.Abdul Raoof P and Sri.P.Jaypal Menon, learned Counsel appearing for the petitioner and respondent respectively. 3. The only question arising for consideration in this original petition is regarding the legality of the finding of the trial court that an application for impleadment of persons who were not parties to the suit and and determination of their shares cannot be entertained at the execution stage. 4. On the question of finality of a preliminary decree, the Apex Court in _**Venkata Reddy v. Pethi**_ _**Reddy, [AIR 1963 SC 992]**_ has categorically held that the preliminary decree in a partition suit, as far as the parties are concerned, is final. The contextually relevant portion of the judgment is extracted below; _“A decision is said to be final when, so far as the court rendering it is concerned,_ O.P.(C) No.1462 of 2021 -6- _it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree — the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree.”_ ## 10. Later in _**Phoolchand v. Gopal Lal, [(1967) 3**_ _**SCR 153]**_ the position was clarified as under; O.P.(C) No.1462 of 2021 -7- _“7. We are of the opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares,_ -8- ## O.P.(C) No.1462 of 2021 _the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible and obviously this is so because the High Courts have differed on the question — we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided_ O.P.(C) No.1462 of 2021 -9- _by the court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances of this case it was open to the court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that_ -10- ## O.P.(C) No.1462 of 2021 _behalf and that dispute is decided the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant.”_ (underline emphasised) **Even going by the dictum in** _**Phool Chand**_ **, the question of reopening of the preliminary decree would arise only on the happening of a subsequent event which necessitates the augmentation of shares already allotted. As far as the instant case is concerned, the petitioner's prayer for reopening the preliminary decree is on the premise that certain sharers were not made parties to the suit. Not only is the prayer based on a subsequent event, none of the persons alleged to have been left out and entitled for shares, have approached the court seeking impleadment. It is hence clear that the attempt** O.P.(C) No.1462 of 2021 -11- **of the petitioner is only to protract the execution proceedings.** **In the result, the original petition is** **dismissed.** Sd/- **V.G.ARUN JUDGE** Scl/ O.P.(C) No.1462 of 2021 -12- ## **APPENDIX OF OP(C) 1462/2021** ## PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE AFFIDAVIT WITH| |---|---| ||PETITION IN EA 150/2021 IN EP 611/2019| ||IN EP 33/2018 IN FDIA 4309/2011 IN OS| ||184/2010 FILED BY THE PETITIONER| ||BEFORE THE PRINCIPAL MUNSIFFS COURT,| ||KANNUR.| |Exhibit P2|TRUE COPY OF THE OBJECTION IN EA| ||150/2021 IN EP 611/2019 IN EP 33/2018| ||IN OS 184/2010 FILED BY THE| ||RESPONDENTS 1 TO 3 BEFORE THE| ||PRINCIPAL MUNSIFFS COURT, KANNUR.| |Exhibit P3|TRUE COPY OF THE AFFIDAVIT FILED IN| ||SUPPORT OF THE PETITION IN EA 149/2021| ||IN EA 611/2019 IN EP 33/2018 IN FDIA| ||NO.4309/2011 IN OS 184/2010 BEFORE THE| ||PRINCIPAL MUNSIFFS COURT, KANNUR.| |Exhibit P4|TRUE COPY OF THE ORDER DATED| ||27.08.2021 IN EA 150/2021 IN EA| ||611/2019 IN EP 33/2018 IN OS 184/2010| ||OF THE PRINCIPAL MUNSIFF COURT,| ||KANNUR.| |Exhibit P5|TRUE COPY OF THE PETITION IN FDIA| ||NO.4309/2011 IN OS 184/2020 FILED| ||BEFORE THE PRINCIPAL MUNSIFF COURT,| ||KANNUR.| |Exhibit P6|TRUE COPY OF THE PETITION FOR PASSING| ||THE SECOND PRELIMINARY DECREE AFTER| ||IMPLEADING OMITTED PARTIES IN OS| ||NO.184/2010 BEFORE THE PRINCIPAL| ||MUNSIFF COURT, KANNUR.| |Exhibit P7|TRUE COPY OF THE PETITION FOR STAY OF| ||THE OPERATION OF FINAL DECREE IN FDIA| ||NO.4309/2011 IN OS NO.184/2020 FILED| ||BEFORE THE ADDITIONAL MUNISFF COURT,| ||KANNUR.|