Kunjippalu v. Kochu Mariam — 1989 DIGILAW 490 (KER)

Judgment :- 1. The appeal is against the final decree and judgment in a suit for partition. The 3rd defendant is the appellant. 2. Plaintiffs three in number, daughters of one Kannampuzha Thomma, who died intestate on 2-8-1970, claimed partition and separate possession of the shares belonging to them in the assets left by their father and described in plaint 'A' and 'B' schedules. They actually claimed 3/14 shares of the assets. The other legal heirs are defendants 1 to 4 the widow and three sons of deceased Thomma. Shares were claimed in the suit as if the parties were governed by the Cochin Christian Succession Act 6 of 1907 (hereinafter referred to as the Cochin Act). 3. In accordance with the provisions in the Cochin Act a preliminary decree was passed allowing partition and separate possession of 3/14 shares of the plaintiffs out of the assets found to be partible. The preliminary decree was thus passed on 25-3-1975. 4. On the basis of the preliminary decree so passed a final decree was passed on 27-8-1989. It is the validity and correctness of the final decree so passed that has been challenged in this appeal by the 3rd defendant. 5. In the appeal the main grievance of the appellant is about the allotment of the property made by the court below. The complaint is that the court below went wrong in altering the allotment made by the commissioner in his revised report Ext.C8 and allotting to the plaintiffs the items set apart to the 3rd defendant and allotting item No.7 of plaint 'A' schedule (plots A, D and E) in Ext.C5 plan of the commissioner to the appellant. According to the learned counsel there was no justification for making such an allotment in variation with the allotment made by the commissioner in his revised report. Further it was contended that before making such a variation the court below has not given the parties especially his client an opportunity to be heard in the matter. 6. Pending the appeal the mother of the parties who was the 4th respondent in the appeal died. 7. Further it was contended that before making such a variation the court below has not given the parties especially his client an opportunity to be heard in the matter. 6. Pending the appeal the mother of the parties who was the 4th respondent in the appeal died. 7. Respondents 1 to 3 and 6 have filed a petition C.M.P. No.7449/89 praying for a direction "to allot 4/7 share of the entire partible estate left by Kannampuzha Thommen to the plaintiffs in the case, by re-opening and amending the preliminary decree if such a course is deem necessary or expedient by this Hon'ble Court". In the affidavit filed in support of the petition it is stated that in the light of the decision of the Supreme Court reported in Mary Roy v. State of Kerala (1986 KLT 508) and the decision of this Court reported in Joseph Philip v. Mariamma Chacko (1987 (2) KLT 924), the final decree passed in the suit cannot be sustained in law. Further it is contended that the preliminary decree passed in the suit is also. liable to be reopened so as to adjust or re-determine the rights of the parties in accordance with the provisions contained in Chapter II of Part V of the Indian Succession Act, 1925, which is indisputably the law governing the rights of the parties in relation to the properties sought to be partitioned. It was also contended, relying upon Mathew v. Eliswa(1988 (1) KLT 310), that this Court is entitled to pass a fresh preliminary decree in exercise of the powers conferred under Order XLI R.33 of the C.P.C. after setting aside the preliminary and final decree passed in the suit in the peculiar facts and circumstances of the case. They have also prayed for a modification of the shares in view of the death of their mother, 4th respondent, after the passing of the preliminary decree. 8. The prayer of the petitioners in C.M.P. No.7449/89 was strongly opposed by the learned counsel for the appellant. It is pointed out that since the appeal is one against the final decree passed in the suit this Court has no jurisdiction to interfere with the preliminary decree which has become final and on the basis of which the final decree under challenge was passed. It is pointed out that since the appeal is one against the final decree passed in the suit this Court has no jurisdiction to interfere with the preliminary decree which has become final and on the basis of which the final decree under challenge was passed. It is also pointed out that the 5th respondent in the appeal has not entered appearance through advocate and no notice has been given to him in the above petition and as such no final orders can be passed in the above petition without notice to the 5th respondent. 9. In the light of the decisions reported in Mary Roy v. State of Kerala (1986 KLT 508) and Mathew v. Eliswa (1988 (1) KLT 310), the Christian Succession Act, 1092 (Cochin) must be treated as repealed with the coming into force of the part B States (Laws) Act and since then persons who were otherwise governed by the Cochin Act would be governed by the provisions of the Indian Succession Act. If that is the correct legal position, then it is further clear from the decisions of this Court reported in 1987 (2) KLT 924 and 1988 (1) KLT 310, that the final decree appealed against is liable to be set aside eventhough not appealed against by the plaintiffs-respondents 1 to 3 in the appeal. Hence, following the principles laid down by this Court in the above two decisions, I hold that the final decree appealed against is liable to be set aside since the same is based upon a preliminary decree passed in accordance with the provisions of the Cochin Act which has to be deemed as repealed from the commencement of Part B States (Laws) Act. 10. On an anxious consideration of the rival contentions put forward by the parties and the peculiar facts and circumstances of the case, I am of the view that it may not be either legal or proper for this Court to set aside the preliminary decree already passed in the suit and/or to pass a fresh preliminary decree in its place applying the provisions in the Indian Succession Act, in exercise of the powers under Order XLI R.33 of the C.P.C., in an appeal against the final decree for partition. However, I am equally clear in my mind that in the peculiar facts and circumstances of the case it is necessary to declare that the share determined as per the preliminary decree already passed in the suit requires to be changed or re-determined in the light of the relevant provisions contained in the Indian Succession Act and taking note of the death of the 4th respondent after the passing of the preliminary decree. In this view of the matter it is further necessary to direct the court below to pass a second or supplementary preliminary decree after determining the quantum of the shares due to the parties applying the provisions of the Indian Succession Act and taking note of the death of the 4th respondent before proceeding further with the final decree application. I take this view because I find sufficient support for that view in the decision reported in Phoolchand v. Gopal Lal (AIR 1967 SC 1470) which was followed by this Court in Joseph Philip v. Mariamma Chacko (1987 (2) KLT 924). While considering the legality and propriety of passing a second preliminary decree in a suit for partition and the circumstances under which such a decree can be passed in a partition suit, the Supreme Court has made the following observations: "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. 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 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, 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." (emphasis supplied) 11. Since I am setting aside the final decree, and directing the court below to pass a second or supplemental preliminary decree in accordance with the directions and observations contained in this judgment it is not necessary to go into the merits of the contentions raised by the appellant in the appeal and by respondents 1 to 3 and 6 in C.M.P.No.7449/89. It will be open to the parties to the suit to raise all their objections regarding the quantum of share and the allotment of the properties in the fresh proceedings to be taken before the court below on the basis of the remand ordered hereby. 12. In the result, the final decree passed in I.A. No.252 of 1977 in O.S.No.145 of 1972 is set aside in its entirety and the final decree application LA. No.252/77 is remanded to the court below. Before any further steps are taken in the final decree application, the court below is directed to pass a second or supplemental preliminary decree in accordance with the directions and observations contained in this judgment and in accordance with law, after giving due notice to all the parties and after hearing them. No.252/77 is remanded to the court below. Before any further steps are taken in the final decree application, the court below is directed to pass a second or supplemental preliminary decree in accordance with the directions and observations contained in this judgment and in accordance with law, after giving due notice to all the parties and after hearing them. On passing the second or supplementary preliminary decree, the parties are at liberty to take appropriate further steps to get a final decree passed in accordance with law. 13. The appeal is thus allowed. The final decree passed in I.A.No.252/77 in O.S.No.145/72 is set aside in its entirety. The final decree application, I.A.No.252/77, is. remanded to the court below. Before further steps are taken in I.A.No.252/77 the court below is directed to pass a second or supplementary preliminary decree in accordance with the directions and observations contained in this judgment and in accordance with law. The parties are at liberty to take appropriate steps thereafter to get a final decree passed in the suit in accordance with law. 14. The court fee paid on the memorandum of appeal is directed to be refunded to the counsel for the appellant. The date fixed for appearance of the parties before the court below is 12-12-1989. The parties are directed to bear their respective costs. Since the suit is of the year 1972, the matter is directed to be disposed of at an carry date. Records may be forwarded to the court forthwith. Issue carbon copy of the judgment to the parties on usual terms. Allowed.