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2012 DIGILAW 780 (KER)

Meenakshi Amma v. Raghavan Nair

2012-08-14

THOMAS P.JOSEPH

body2012
JUDGMENT Thomas P. Joseph, J. 1. One of the questions urged for a decision is whether after a final decree for partition is passed, an appeal from the preliminary decree is competent ? 2. The Second Appeal is brought from the judgment and decree of learned District Judge, Kozhikode in A.S. No. 76 of 2011 modifying the judgment and preliminary decree for partition passed by the learned Munsiff, Kozhikode in O.S.No.44 of 2005. 3. The suit property belonged to the late Karthyayanai Amma who died issueless and intestate on 1.9.2003. According to the original plaintiff (appellants are his legal representatives), himself and the respondents 1 and 2 have succeeded to the estate of the said Karthyayanai Amma by virtue of S. 15(1)(d) of the Hindu Succession Act, 1956 (for short 'the Act). Velayudhan Nair, the brother of Karthyayanai Arnma pre-deceased her on 6.8.1999. Hence, the original plaintiff claimed that the legal heirs of the said Velayudhan Nair are not entitled to get any share in the suit property. 4. The respondents contended that the legal heirs of Velayudhan Nair are also entitled to get l/4th share in the property of Karthyayanai Amma. They also referred to a partition deed executed in the year, 2004 (without the junction of the original plaint). 5. In the view of the contentions raised by the respondents 1 and 2, the legal heirs of Velayudhan Nair were impleaded as additional defendants 3 to 5 (respondents 3 to 5). They claimed a share in the suit property as legal heirs of Velayudhan Nair. 6. The trial court held that respondents 3 to 5 being the legal heirs of Velayudhan Nair are not entitled to any share in the suit property. It was held that the partition deed executed in the year, 2004 will not bind the original plaintiff since it was without his junction. Accordingly, a preliminary decree was passed for partition of the suit property among the original plaintiff and the respondents 1 and 2. A final decree was also passed as per order on I.A. No. 1619 of 2008. Execution proceeding was also initiated. 7. The respondents 3 and 5/additional defendants 3 and 5 filed A.S. No. 76 of 2011 in the District Court, Kozhikode after the period of limitation prescribed but with an application to condone the delay. The delay was condoned and the appeal was admitted. Execution proceeding was also initiated. 7. The respondents 3 and 5/additional defendants 3 and 5 filed A.S. No. 76 of 2011 in the District Court, Kozhikode after the period of limitation prescribed but with an application to condone the delay. The delay was condoned and the appeal was admitted. After hearing both sides the learned District Judge modified the judgment and preliminary decree of the trial court and granted a share to the respondents 3 to 5 as well. That judgment and decree of the first appellate court are under challenge in this Second Appeal. 8. The learned counsel for the appellants (legal representatives of the deceased plaintiff) has contended that the appeal before the learned District Judge was incompetent since even before filing of that appeal, the Trial Court had passed a final decree as per order on I.A.No. 1619 of 2008. According to the learned counsel, an appeal from the preliminary decree is incompetent after passing of the final decree. The learned counsel has placed reliance on the decisions in Kulada Prasad Choudhury & Ors. v. Ramanand Patnaik, AIR 1921 Cal. 109 and Lal Chand & Ors. v. Thakar Das, AIR 1928 Lah.73. 9. The second contention is that since Karthyayani Amma died on 1.9.2003 after the Kerala Joint Hindu Family System (Abolition) Act, 1975 (for short 'the Abolition Act') came into force (on 1.12.1976), the suit property must be deemed to be the self-acquired property of the late Karthyayani Amma and hence, S.15 (1)(d) of the Act alone would apply. In that case, the respondents 3 to 5 being the legal representatives of Velayudhan Nair, the pre-deceased brother of late Karthyayani Amma are not entitled to any share. It is argued that the finding of the learned District Judge to the contrary is erroneous. 10. The last argument is that at any rate, the first appellate court was not right in modifying the judgment and decree of the Trial Court even in favour of the non-appealing 4th respondent. 11. So far as maintainability of the appeal before the learned District Judge for the reason of a final decree being passed in the meantime is concerned, the decisions which the learned counsel has relied upon have taken the view that when a final decree has already been passed, an appeal from the preliminary decree alone is incompetent. In Kulada Prasad Choudhury & Ors. In Kulada Prasad Choudhury & Ors. v. Ramanand Patnaik, the reasoning adopted is that even if the preliminary decree is reversed, the final decree would still remain unaffected. In Lal Chand and others v. Thakar Das, Fforde, J. who wrote the judgment for the Bench observed that no authority in which the court has permitted an appeal against the preliminary decree, filed after the final decree has been passed was brought to the notice of the learned Judges and that the trend of judicial opinion is that the appeal against a preliminary decree filed after passing of the final decree is not competent. 12. With great respect, I prefer to disagree with the above view after giving an anxious consideration of the said question in the light of S.97 of the Code of Civil Procedure (for short 'the Code'). My reasons for the dissent are as under:- 1) Section 97 of the Code on which the learned Judges have placed reliance does not make an appeal from a preliminary decree incompetent for the reason that in the meantime a final decree has been passed. A preliminary decree and final decree operate in different directions - a preliminary decree (for partition) declares rights of the parties and determines their shares while the final decree makes allotment of the shares. A preliminary decree has independent legs to stand unlike in the case of a final decree which is based on the preliminary decree. It could therefore be said that when a preliminary decree is set aside, that will have a bearing on the final decree in the same way since the final decree rests on the preliminary decree. S.97 of the Code only says that if a party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. S.97 only indicates that as to the matters covered by a preliminary decree, it is regarded as embodying the final decision of the court passing that decree. The said provision does not say either expressly or impliedly that an appeal from the preliminary decree for partition is incompetent after the final decree is passed. S.97 only indicates that as to the matters covered by a preliminary decree, it is regarded as embodying the final decision of the court passing that decree. The said provision does not say either expressly or impliedly that an appeal from the preliminary decree for partition is incompetent after the final decree is passed. 2) A right of appeal provided under a statute is a vested and substantive right of the party and that right is accrued to the party on the day the 'lis' commences. That right can be taken away only by a subsequent legislation (see Garikapati Veeraya v. N. Subbiah Choudhary & Ors., 1957 KLT SN 54 (C.No.137) SC = AIR 1957 SC 540 and Clara and others v. Augustube & Ors. 1984 KLT 377 ). S.96 or S.100 of the Code gives statutory right for a party aggrieved to file an appeal/second appeal from the decree as stated therein. (Institution of the suit for partition gives the party aggrieved by the preliminary decree the right to challenge it by way of an appeal. S. 97 of the Code does not preclude the filing of an appeal from a preliminary decree for partition after a final decree is passed. No other provision in the Code or any other statute is also brought to my notice which takes away the vested and substantive right the party has acquired on the date of institution of the suit to challenge the preliminary decree in appeal for the reason that a final decree has been passed in the meantime. 13. For my above view, I draw support from the following decisions i) Kanhaiya Lal & others v. Tirbeni Sahai & Ors., AIR 1914 All. 380) (F.B.). ii) Taleb Ali & Anr. v. Abdul Aziz & Ors., AIR 1929 Cal.689) (F.B.). iii) Wajihunnissa & Ors. v. Bankebehari Singh & Ors., AIR 1930 Patna 177 (F.B.)). The Full Benches of the above High Courts have declared the law under S.97 of the Code that an appeal from a preliminary decree is not incompetent for the reason of a final decree being passed in the meantime. 14. I therefore do not find any force in the contention that the appeal from the preliminary decree for partition was incompetent for the reason that in the meantime, a final decree was passed. 15. 14. I therefore do not find any force in the contention that the appeal from the preliminary decree for partition was incompetent for the reason that in the meantime, a final decree was passed. 15. Then the next question is whether it is S. 15(l)(d) or S. 17 of the Act that would apply for the reason of death of Karthyayani Amma on 1.9.2003 after the enactment of the Abolition Act so far as the claim of respondents 3 to 5 as the legal representatives of Velayudhan Nair, the brother of Karthiyayani Amma who predeceased her, is concerned. 16. The learned counsel for the appellants have a contention that there is no plea that the parties were following the Marumakkathayam Law of Succession. Assuming so, it is seen from the judgment of the trial and first appellate courts that the parties have proceeded on the basis that they were otherwise governed by the provisions of the Marumakkathayam Law in the matter of succession. Hence at this stage the appellants cannot be allowed to raise a contention that there is no plea that the parties were following the Marumakkathayam Law of Succession. 17. Admittedly, Velayudhan Nair, brother of the late Karthyayani Amma predeceased her on 06.08.1999. It is also admitted that respondents 3 to 5 are the legal heirs of Velayudhan Nair. Now the question whether it is S.15(l)(d) or 17 of the Act which would apply. The entire argument is based an the enactment of the Abolition Act which came into force on 1.12.1976. 18. The Larger Bench of this court in Chellamma Kamalamma v. Narayanan Pillai, 1993 (1) KLT 174 (F.B.) has decided the issue. In paragraph 50 of the said decision, Clause 1 (ii) says that so far as persons living as on 18.06.1956 when the Act came into force and who died on or after 01.12.1976 (when the Abolition Act came into force) are concerned, it is S. 17 of the Act which would govern the law of succession. Therefore, that Velayudhan Nair and Karthyayani Amma died after 1.12.1976 would not make S. 17 of the Act inapplicable; instead the said provision would apply. 19. Therefore, that Velayudhan Nair and Karthyayani Amma died after 1.12.1976 would not make S. 17 of the Act inapplicable; instead the said provision would apply. 19. Section 17 of the Act states that provisions of Ss.8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the Marumakkathayam or Aliyasanthana Law if the Act had not been passed, and thirdly, as per clause (ii) (c) upon the heirs of the mother. 20. The learned counsel has invited my attention to S. 15(1) clauses (d) and (e) to contend that there, precedence is given to the heirs of the father as against the heirs of the mother. But, in view of the decision of the larger Bench referred above that with respect to persons who were alive when the Act came into force and who died on or after 1.12.1976 it is S. 17 of the Act which would apply, the question of reference to S.15 of the Act does not arise. 21. Referring to Ss. 15,16 (Rule 3) and 17 of the Act, it is held Balakrishna Kaimal & Ors. v. Gopala Kaimal, ILR 1973 (1) Ker. 149 that for the purpose of inheritance, the death of the legal heir shall be deemed to have occurred after the death of the intestate. If that be so, by the deeming provision it must be taken that Velayudhan Nair died after Karthyayanai Amma died intestate on 1.9.2003. Hence respondents 3 to 5 being legal heirs of Velayudhan Nair are entitled to a share in the property of the late Karthyayanai Amma. 22. The last argument is that judgment and decree of the first appellate court favours the non-appealing the 4th respondent as well. It is argued that the appeal ought not have been allowed in favour of the non-appealing 4th respondent. 23. The respondents 3 to 5 are the legal heirs of Velayudhan Nair. The responds 3 and 5 filed the appeal in the District Court with the 4th respondent as one of the respondents. Their claim is common and proceeded on the same fact and law. 23. The respondents 3 to 5 are the legal heirs of Velayudhan Nair. The responds 3 and 5 filed the appeal in the District Court with the 4th respondent as one of the respondents. Their claim is common and proceeded on the same fact and law. Therefore when the appeal is allowed in favour of the respondents 3and 5 (who appealed from the preliminary decree) it was within the power of the first appellate court, nay; the duty to pass a decree which the trial court was required to pass in favour of the non-appealing the 4th respondent also, invoking R.33 of O.XLI of the Code. Under the said provision when an appeal is allowed in favour of the appellants, it is within the power of the appellate court to grant relief to a non-appealing respondent as well particularly to avoid inconsistent and anomalous decrees. Had not the first appellate court granted relief to the non appealing 4th respondent also it would appear that the respondents 3 and 5 would get a share in the suit property but not the 4th respondent who is similarly placed. To avoid such inconsistency, the Code has provided R.33 in O.XLI and has empowered the appellate court to pass appropriate decrees. That is what the first appellate court has done 24. On hearing the learned counsel and on going through the judgments challenge I do not find any substantial question of law arising for a decision in this Second Appeal. The Second Appeal is dismissed. All pending Interlocutory Applications will stand dismissed.