W.P.(C).No. 30372 of 2007 (N) – Biju @ Viju & Valsa vs Rosy, Marys & Litty David

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 WP(C).No. 30372 of 2007(N) -------------------------OS.338/2004 of MUNSIFF COURT, CHALAKUDY .................... PETITIONERS: ------------ 1. BIJU @ VIJU, S/O. VALLOORAN ANTHONY, MELOOR DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER BABU, S/O. VALLOORAN ANTHONY, IN -DO- -DO- 2. VALSA, W/O. KANNAMKULAM KOCHAGUSTHY, PUTHUPARAMBU DESOM, EAST CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS: - ------------- 1. ROSY, D/O. PALATTY VAREED & W/O. MADONA VARGHESE, ALOOR DESOM AND VILLAGE, MUKUNDAPURAM TALUK. 2. MARYS, D/O. PALATTY VAREED & W/O. KALLELI DAVIS, KUTTIKKAD DESOM, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK. 3. LITTY DAVID @ KOCHUTHRESSYA, - D/O. PALATTY VAREED & W/O. DAVIS, - VIJAYA NILAYAM, KUNJANAKUNDU P.O., BANGALORE-560 064. R1 & R2 BY ADV. SRI.K.S.BHARATHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 30372/07 ## APPENDIX PETITIONER'S EXHIBITS: - EXT.P1. DT. 15.7.06, COPY OF I.A. NO.1152 OF 2006 IN OS NO. 338/04, MUNSIFF'S COURT, CHALAKUDY - EXT.P2. DT. 15.7.06, COPY OF I.A. NO.1153 OF 2006 IN OS NO. 338/04, MUNSIFF'S COURT, CHALAKUDY - EXT.P3. DT. 15.7.06, COPY OF I.A. NO.1155 OF 2006 IN OS NO. 338/04, MUNSIFF'S COURT, CHALAKUDY - EXT.P4. DT. 31.7.06, COPY OF THE OBJECTION FILED BY RESPONDENTS 1 AND 2 IN I.A. NO.1152 OF 2006 IN OS NO. 338/04, MUNSIFF'S COURT, CHALAKUDY - EXT.P5. DT. 31.7.07, COPY OF THE OBJECTION FILED BY RESPONDENTS 1 AND 2 IN I.A. NO.1153 OF 2006 IN OS NO. 338/04, MUNSIFF'S COURT, CHALAKUDY - EXT.P6. DT. 31.7.06, COPY OF THE OBJECTION FILED BY RESPONDENTS 1 AND 2 IN I.A. NO.1155 OF 2006 IN OS NO. 338/04, MUNSIFF'S COURT, CHALAKUDY - EXT.P7. DT. 8.8.07, COPY OF THE ORDER IN I.A. NO.1152 OF 2006 IN OS NO. 338/04, MUNSIFF'S COURT, CHALAKUDY - EXT.P8. DT. 8.8.07, COPY OF THE ORDER IN I.A. NO.1153 OF 2006 IN OS NO. 338/04, MUNSIFF'S COURT, CHALAKUDY - EXT.P9. DT. 8.8.07, COPY OF THE ORDER IN I.A. NO.1155 OF 2006 IN OS NO. 338/04, MUNSIFF'S COURT, CHALAKUDY /TRUE COPY/ PA TO JUDGE. ## **M.N.KRISHNAN, J.** ## **-------------------------W.P.(C). NO. 30372 OF 2007 --------------------Dated this the 14[th ] day of February, 2008** ## **JUDGMENT** This writ petition is preferred against the orders of the Munsiff Chalakkudy covered by Exts.P7 to P9. OS 338/04 is a suit for partition filed by Rosy and Mary against Litty David. The property involved in the suit admittedly belonged to one Kunhelia. The plaintiffs and defendant are the daughters of the said Kunhelia. According to the petitioner, who is a purchaser from Litty David, the said Kunhelia had executed a registered Will on 18.2.98 setting apart “A” schedule property to Litty David and “B” schedule property to the other two daughters jointly. Kunhelia died on 6.1.03. It is the case of the writ petitioner that he purchased th right of Litty David and therefore he is the owner in possession of “A” schedule property described in the Will alleged to be executed by Kunjalia. 2. In OS 338/04 there is no whisper against the Will and the suit is filed by the two daughters to whom “B” schedule property is allotted. Litty David, the alottee of “A” schedule property, under the Will, through her power of attorney assigned her right in favour of the writ petitioner. The suit is instituted on the death of the mother as if the daughters have succeeded into her estate and therefore they are entitled to equal right over the property. The schedule in the plaint contains both “A” and “B” schedule WPC NO 30372/07 2 property annexed to the Will. In other words, there was no contention regarding the existence of a Will and as the defendant remained ex parte in the suit, the plaintiffs were given a decree declaring that they are entitled to two out of three shares in the property. A final decree application is also filed and it is pending consideration. Meanwhile the present writ petitioners have filed a suit before the Subordinate Judge, Irinjlakuda as OS 313/06 to set aside the decree in OS 338/04 and also for consequential reliefs. The matter is pending consideration before that court. The writ petitioners moved an application before the court in OS 338/04 to reopen the preliminary decree and to implead them and dispose of the matter in accordance with law. Learned counsel for the petitioners strongly contends before me that when the decree is vitiated by fraud it is non est and therefore it is the paramount duty of the court to consider it when it is brought to the notice of the court. Therefore the preliminary decree be reopened and the matter be considered in accordance with law. 3. Learned counsel had brought to my notice the decision of the Apex court reported in **Hamza Haji v. State of Kerala** (2006 (3) KLT 941). In that decision the Apex court considered that when there is a fraud manifestly on the face of the judgment the proper remedy is to bring to the notice of the authority regarding the same and get it corrected. It was a case relating to an issue involved in a vesting of forest. There the court on WPC NO 30372/07 3 facts found that explicitly the fraud was played and therefore the court has to interfere and therefore upheld the judgment of this court in that case. 4. Learned counsel for the respondent had brought to my notice two decisions of this court one in **Vasudeva Kallurao v. Ramachandra Rao &** **Another** (1977 KLT 414) wherein this court held that application for impleading in a final decree proceedings is not maintainable and the remedy for the party is to file a suit if aggrieved by the decision. This court held as follows: _**“Though the words in Rule 10(2) of Order I are 'at any stage of the proceedings', it cannot be said that even one who is a proper party or a necessary party to the suit can insist that he should be allowed to come in after the decree under all circumstances. Even in suits like partition where a preliminary decree and a final decree are to be passed, unless set aside in appropriate proceedings, the decision in the preliminary decree also will be a final one. So, in such cases also after the preliminary decree, impleading can be made only under exceptional circumstances . One such circumstance will be the death of a party after the preliminary decree. Another circumstance can be a transfer after the preliminary decree. In the above cases, the legal representatives as well as the transferee or the transferees, as the case may be, cannot but be impleaded. By impleading them no question of reopening the preliminary decree also arises as they are simply stepping into the shoes of the party who died or the transferer, as the case may be. In any other case, if one is allowed to come in after the preliminary decree, even though he is a person who has interests in the subject-matter of the litigation, unless a preliminary decree is reopened, no purpose will be served because by that the preliminary decree cannot be reopened. This is something which is not possible also. Having not chosen to get herself impleaded before the preliminary decree, as far as the suit in question is concerned, the**_ WPC NO 30372/07 4 _**petitioner has missed the bus. The only course open to her is to file a fresh suit. It goes without saying that the rights, if any she has got, cannot at all be affected by a decree in a suit in which she is not made a party. Admittedly, the petitioner in this case is not a transferee from a party to the suit or a legal representative of any party. This being so, the court below was clearly in the wrong in the exercise of its jurisdiction in allowing the impleading applications”.**_ 5. Learned counsel had also cited the decision of this court reported in **Neelakanta Pillai v. Ayyappan Pillai** (1978 KLT 305) wherein a Division Bench of this court held that impleadment or reopening can be allowed only in a situation where fresh points are not to be raised or the questions already decided are to be reagitated. Therefore the view of this court in the two decisions referred to above is that if the matter requires a reappraisal and fresh finding it is not proper to reopen the case after the passing of the preliminary decree and the party's remedy is to approach the appropriate court for redressal of the grievance by institution of a suit. The case relied upon by the learned counsel for the writ petitioners was a case where from the explicit materials available before the court, the court was able to infer the fraud played on the governmental agency and therefore decided to treat it as non est and consider the matter afresh. So far as this case is concerned, the execution of the Will by the mother is not admitted by the plaintiffs in the other case and it is submitted that it is a contention that has been raised in the suit which is filed to set aside the judgment and decree of the court. Fraud is a matter for which there cannot be any direct WPC NO 30372/07 5 evidence. Fraud has to be found from the circumstance available and it cannot be decided on the mere basis of conjectures and seremises. So when a decree is attacked on the ground of a fraud it requires deeper investigation to find out whether the element of fraud prevails over there or not. Suppose a preliminary decree is reopened in this case on the mere pleadings of the parties that fraud has been played, it will be unsettling the decision rendered by the court. When the party himself has resorted to proper remedy by virtue of institution of a suit and has also prayed for an injunction restraining the plaintiffs therein from proceeding in pursuance of the decree passed by the court, the real remedy for the party is to urge before the court where his suit is pending for an interim direction. When the court is satisfied prima facie about the factum alleged in the plaint, the court may use its discretion for preventing the execution or passing of the final decree. But it is not proper, according to me also, to reopen the preliminary decree, to implead the party and to allow the whole matter to be reagitated merely on the basis of an averment of fraud in the application. 6. Therefore I do not find any ground to interfere with the orders passed by the court below and therefore dismiss this writ petition. Needless to say if the writ petitioners want any remedy, it is for them to approach the court where the suit is pending for interim directions. In order to facilitate the writ petitioners to move the court where the suit is pending, I direct the court, where the final decree proceeding is pending, not to WPC NO 30372/07 6 proceed further with the final decree for a period of three weeks from today. In case if final decree is passed, the court shall not execute that final decree for a period of three weeks. **M.N.KRISHNAN, JUDGE** vps WPC NO 30372/07 7