JUDGMENT : CR [RFA Nos.81/2013, 200/2014 & OPC 1718/2015] 1. Since the above three cases relate to O.S.No.787/1994 on the files of the First Additional Sub Court, Kozhikode, they are disposed by a common judgment. 2. R.F.A.No.81/2013 is filed by the legal heirs of the second defendant in O.S.No.787/1994 challenging the Preliminary Decree dated 19.11.1997 passed by the Trial Court. 3. R.F.A.No.200/2014 is filed by the very same persons who were impleaded as additional respondents 27 & 28 in the final decree proceedings in O.S.No.787/1994 challenging the Order dated 28.09.2013 of the Trial Court passing final decree in O.S.No.787/1994. 4. O.P.(C).No.1718/2015 is filed by the second appellant in the above appeals challenging Ext.P11 order produced therein dated 28.11.2014 in I.A.No.3451/2014 in O.S.No.426/2002, by which his prayer for receiving his Written Statement filed after attaining majority, is dismissed by the Trial Court. O.S.No.426/2002 was filed by four assignees of parts of the plaint schedule properties in O.S.No.787/1994 seeking a declaration that the judgment and decree passed in O.S.No.787/1994 are not valid, binding, and enforceable against the plaintiffs or the plaint schedule property therein. The petitioner in O.P(C) was the 30th defendant in O.S.No.426/2002. The mother of the 30th defendant had filed a Written Statement for him as guardian while he was a minor. On attaining majority during the pendency of O.S.No.426/2002, he filed I.A.No.3451/2014 with a prayer to receive his Written Statement on the ground that the Written Statement filed for him by his mother does not protect his interest. The said O.P.(C) was admitted on 17.07.2015 and the further proceedings in O.S.No.426/2002 is stayed as per interim order and the same is still in force. 5. I heard the learned Senior Counsel Sri. T. Sethumadhavan, instructed by Adv. Sri.K.Jayesh Mohankumar for the appellants in the Appeals and the petitioner in the O.P.(C), the learned Senior Counsel S.V. Balakrishna Iyer, instructed by Adv. Sri.P.B.Subramaniam who appeared for the third respondent in the Appeals and the 7th respondent in the O.P(C) and Adv. Sri.A. Balagopal who appeared for the first and second respondents in the Appeals and the respondents 5 & 6 in the O.P.(C). 6. The Preliminary Decree dated 19.11.1997 challenged in R.F.A.No.81/2013 is an ex parte decree. As per the preliminary decree, the plaintiffs are entitled to get 12/30 shares in the plaint schedule properties, and the mesne profits are to be considered at the final decree stage. 6. The Preliminary Decree dated 19.11.1997 challenged in R.F.A.No.81/2013 is an ex parte decree. As per the preliminary decree, the plaintiffs are entitled to get 12/30 shares in the plaint schedule properties, and the mesne profits are to be considered at the final decree stage. Six items of properties are sought to be partitioned in the suit. The plaintiffs are the daughters of the 1st defendant. As per the plaint averments the properties belonged to Narayanankutty, who is their paternal grandfather. 7. The learned Senior Counsel for the appellants contended that even going by the averments in the plaint itself the decree should not have been granted by the Trial Court as the specific averment in the plaint is that the parties to the suit are following Hindu Mitakshara Law. As per Hindu Mitakshara Law, female members are not entitled to get any share in the coparcenary property. O.S.No.787/1994 was filed with the malafide intention to unsettle the preliminary decree dated 23.12.1971 in O.S.No.66/1968 for partitioning the very same six items of properties belonging to the said Narayanankutty. O.S.No.66/1968 is filed by one of the daughters of Narayanankutty for partition, and as per the preliminary decree, the sons of Narayanankutty were allotted 8/24 shares each, and each of the daughters was allotted 1/24 share. The sons of Narayanankutty are the defendants 1 & 2 in O.S.No.787/1994. The second defendant died on 14.02.1999 subsequent to the preliminary decree in O.S.No.787/1994. Since the female members of the family are not entitled to get any share in the Hindu Mitakshara Coparcenary property, the suit ought to have been dismissed by the Trial Court. The Trial Court decreed the suit, without conducting any enquiry, on a mere finding that the age of the plaintiffs is proved by Exts.A1 & A2. Though the plaintiffs prayed for 2/30 shares in the plaint schedule property, the Trial Court granted 12/30 shares in the plaint schedule property. Since the Preliminary Decree is unsustainable, the Final Decree passed on the basis of the same is also unsustainable. Ext.P11 order impugned in the O.P(c) is unsustainable as a defendant is entitled to file a Written Statement after attaining majority when it is found the Written Statement filed for him by the Guardian does not protect his interest. 8. Since the Preliminary Decree is unsustainable, the Final Decree passed on the basis of the same is also unsustainable. Ext.P11 order impugned in the O.P(c) is unsustainable as a defendant is entitled to file a Written Statement after attaining majority when it is found the Written Statement filed for him by the Guardian does not protect his interest. 8. The learned Senior Counsel for the 3rd respondent in the appeals and 7th respondent in the O.P.(C), who is the 1st defendant in the suit, contended that though the appellants had filed I.A.No.927 and 928 of 2007 to set aside the ex parte decree the same was dismissed by the Trial Court. The said order has become final. Hence, the challenge against the very same ex parte decree in R.F.A.No.81/2013 is not maintainable. The second defendant was set ex parte after filing a written statement by him. The appellants, who are the legal heirs of the second defendant, cannot take any stand contrary to the stand taken by the second defendant. 9. The learned Counsel for the respondents 1 & 2 and the respondents 5 & 6 in the O.P.(C) also supported the contentions of the learned Senior Counsel for the respondents 1 & 2. 10. The legality of the Judgment in O.S.No.787/1994 is the main issue to be considered in these cases. The fate of R.F.A.No.200/2014 and O.P.(C) is depended upon the fate of R.F.A.No.81/2013. The points for determination that arise for consideration in these cases are as follows: 1. Whether the appellants can maintain R.F.A.No.81/2013 against ex parte decree after dismissal of an Application to set aside ex-parte decree? 2. Whether the plaintiffs in O.S.No.787/1994 entitled to get share in the coparcenary property? 3. Whether the Trial Court is justified to pass a Preliminary Decree in O.S.No.787/1994 for the partition of the properties which are ordered to be partitioned as per Preliminary Decree in O.S.No.66/1968 for partition? 4. Whether the Final decree challenged in R.F.A No.200/2014 is sustainable? 5. Whether Ext.P11 Order challenged in O.P(c) No.1718/2015 is sustainable? Point No.1: 11. As rightly contended by the learned Senior Counsel for the appellants, Section 96(2) CPC specifically provides that an appeal may lie from an original decree passed ex parte. Explanation to Order 9 Rule 13 CPC provides that, after disposal of appeal against an ex parte decree, no application for setting aside the ex parte decree is maintainable. Point No.1: 11. As rightly contended by the learned Senior Counsel for the appellants, Section 96(2) CPC specifically provides that an appeal may lie from an original decree passed ex parte. Explanation to Order 9 Rule 13 CPC provides that, after disposal of appeal against an ex parte decree, no application for setting aside the ex parte decree is maintainable. The said Explanation does not in any way bar filing an appeal against ex parte after dismissal of an application for setting aside ex parte decree. The learned Counsel for the appellants cited the decision of this Court in Kunjayyan & Ors. v. Kerala State & Anr. [ 2012 (1) KHC 827 ] in which it is held that the remedy provided under Order 9 Rule 13 CPC and the remedy by way of appeal are not mutually exclusive. The learned Senior Counsel cited the decision of the Hon'ble Supreme Court in Bhanu Kumar v. Archana Kumar [ (2005) 1 SCC 787 ], in which it is held that if an application under Order 9 Rule 13 CPC is dismissed, the defendant can file appeal under Section 96(2) CPC on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiff were not sufficient to pass a decree in his favour or that the suit is not otherwise maintainable. In view of the said proposition of law laid down by the Hon'ble Supreme Court and this Court R.F.A.No.81/2013 filed by the legal representatives of the deceased second defendant against exparte decree is perfectly maintainable even after dismissal of their application to set aside the ex parte decree. Point No.2: 12. It is a settled law that the female members of a joint family governed by Hindu Mitakshara Law do not form part of the coparcenary and they are not entitled to have share in the coparcenary property. Daughters of a coparcener do not acquire any right in the coparcenary property by birth. The rights equal to the son of a coparcener are given to the daughter of a coparcener only as per Hindu Succession (Amendment) Act,2005 which amended Section 6 of the Hindu Succession Act, 1956 which came into force with effect from 09.09.2005. Daughters of a coparcener do not acquire any right in the coparcenary property by birth. The rights equal to the son of a coparcener are given to the daughter of a coparcener only as per Hindu Succession (Amendment) Act,2005 which amended Section 6 of the Hindu Succession Act, 1956 which came into force with effect from 09.09.2005. It is well settled by the decision of this Court in Babu v. Ayillalath Arunapriya [ 2012 (4) KHC 445 ] that the Hindu Succession (Amendment) Act, 2005 is prospective in operation and that the Amendment does not have any effect in Kerala as on account of the Kerala Joint Hindu Family System (Abolition) Act, 1975, coparcenary ceased to exist, all the members in the coparcenary who were joint-tenants till then became tenants-in-common. The specific averments in the Plaint itself are that the parties to the suit have been following Hindu Mitakshara Law and that the plaintiffs have the right over the plaint schedule property as they were born before the Kerala Joint Hindu Family System (Abolition) Act, 1975. In view of the specific averment in the Plaint itself in the suit, the plaintiffs being the daughters of the 1st defendant had no right in the coparcenary property. The introduction of the Kerala Joint Hindu Family System (Abolition) Act, 1975, did not make any change with respect to the status of the plaintiffs as they were not members of the coparcenary. Hence the Trial Court ought to have dismissed the suit in view of the averments in the Plaint itself. The Trial Court was bound to conduct an enquiry with respect to the legality of the plaint claim even if the defendants remain ex parte. Even if the defendant is exparte, the Court should be careful enough to consider the pleadings and evidence for arriving at a finding as to whether the plaintiff has made out a case for getting a favourable decree. A detailed judgment as required in a contested matter is not required in an exparte judgment. But the exparte judgment should also reflect application of mind, consideration of the pleadings, issues, evidence and the prayers, and contain the reasons for the judgment. A detailed judgment as required in a contested matter is not required in an exparte judgment. But the exparte judgment should also reflect application of mind, consideration of the pleadings, issues, evidence and the prayers, and contain the reasons for the judgment. I am fortified to take such a view based on the decision of the Hon’ble Supreme Court in Maya Devi v Lalta Prasad [ (2015) 5 SCC 588 ] and It is apposite to extract Paragraph 14 of the said decision. “14. The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff`s claim; may, this feature of the litigation casts a greater responsibility and onerous obligation on the trial court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the plaintiff. Reference to Shantilal Gulabchand Mutha V. TELCO Ltd.[ (2013) 4 SCC 396 , will be sufficient. The failure to file a written statement, thereby bringing Order 8 Rule 10 CPC into operation, or the factum of the defendant having been set ex parte, does not invite punishment in the form of an automatic decree. Both under Order 8 Rule 10 CPC and on the invocation of Order 9 CPC, the court is nevertheless duty-bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted.” 13. Consequently, the Preliminary decree passed in O.S.No.787/1994 is liable to be set aside. Point No.3: 14. It is admitted by the parties that O.S.No.66/1968 is decreed passing Preliminary Decree of partition of the very same plaint schedule properties which are included in O.S.No.787/1994. Admittedly, the said preliminary decree was challenged up to the Hon'ble Supreme Court and the same was confirmed. I.A.No.4925/1976 for passing the final decree is pending. It is obvious that the present suit, i.e., O.S.No.787/1994, was filed by the daughters of the Mitakshara Joint Family, raising untenable claims to unsettle the preliminary decree passed in O.S.No.66/1968. The assignees who purchased part of the plaint schedule property from the sharers who are the plaintiffs in O.S.No.426/2002 were not made parties in O.S.No.787/1994. In the light of these facts, I hold that O.S.No.787/1994 is not maintainable in view of the Preliminary Decree in O.S.No.66/1968. Point No.4: 15. The assignees who purchased part of the plaint schedule property from the sharers who are the plaintiffs in O.S.No.426/2002 were not made parties in O.S.No.787/1994. In the light of these facts, I hold that O.S.No.787/1994 is not maintainable in view of the Preliminary Decree in O.S.No.66/1968. Point No.4: 15. Final Decree dated 28.09.2013 was passed in Final Decree Application No.7138/2000 in O.S.No.787/1994 on the basis of the Preliminary Decree dated 19.11.1997. Since the Preliminary Decree is found liable to be set aside, the Final Decree challenged in R.F.A.No.200/2014 is also liable to be set aside. Point No.5: 16. Since O.S.No.426/2002 was filed for declaration that the judgment and decree passed in O.S.No.787/1994 are not valid, the said suit virtually becomes infructuous when the judgment and decree in O.S.No.787/1994 are set aside in R.F.A.No.81/2013. 17. Even otherwise Ext.P11 order challenged in the O.P.(C) is liable to be interfered. It is seen that I.A.No.3451/2014 is filed by the petitioner in the O.P(C) seeking to accept his Written Statement, immediately on attaining majority, when it is found that the Written Statement filed by the mother-guardian is detrimental to his interest. The learned Senior Counsel for the petitioner cited the decision of the Rajasthan High Court in Malkiyat Singh & Anr. v. Om Prakash & Ors. [AIR 1995 Rajasthan 38] to substantiate the point that a minor who attains majority during the pendency of a litigation is entitled to file fresh written statement in place of the written statement already filed by his guardian. It is apposite to extract paragraphs No.11 and 12 of the said decision. “11. It would not be proper for the courts of law to allow or not to allow a defendant who attains majority during the pendency of litigation to file a fresh written statement in place of the written statement already filed by his or her guardian arbitrarily. It is apposite to extract paragraphs No.11 and 12 of the said decision. “11. It would not be proper for the courts of law to allow or not to allow a defendant who attains majority during the pendency of litigation to file a fresh written statement in place of the written statement already filed by his or her guardian arbitrarily. As a matter of fact, if following conditions are fulfilled by the defendant attaining majority during pendency of the litigation, the courts will ordinarily permit him or her to file a fresh written statement but if the courts do not find any of the grounds mentioned herein below and application for filing a fresh written statement is found to be mala fide with ulterior motive then such defendant should not be allowed to file fresh written statement in place of written statement already filed by their guardians: - (a) If courts of law are satisfied that the case on behalf of minor - defendant was not properly contested by their natural guardian ad item or by next friend. (b) The interest of the guardian or guardian ad item is found to be adverse to the interest of minor - defendant who attained majority during pendency of the litigation. (c) Where a serious prejudice is caused to the interest of the minor - defendant during pendency of the litigation due to mis-conduct or gross negligence of his natural guardian or guardian ad litem. (d) The application for leave of the Court to file a fresh written statement in place of earlier written statement filed by his or her natural guardian or guardian ad item is bona fide and has not been moved with ulterior motive. 12. I would like to add as abundant caution that the aforesaid grounds are only illustrative and not exhaustive. In proper cases, if there are other compelling reasons brought to the notice of the court being courts of law and justice may allow the minor - defendant to file a fresh written statement after attaining majority to secure the ends of justice; and also to prevent abuse of the process of the court. In proper cases, if there are other compelling reasons brought to the notice of the court being courts of law and justice may allow the minor - defendant to file a fresh written statement after attaining majority to secure the ends of justice; and also to prevent abuse of the process of the court. In fact all the situations cannot be formulated in the strait - jacket formula but it would be proper to keep open the discretion of the courts of law to allow the minor - defendant to file a fresh written statement on analogous grounds as stated above.“ 18. I am in respectful agreement with the aforesaid view of the learned Single Judge of the Rajasthan High Court and I follow the same. In the light of the said proposition of law, Ext.P11 Order impugned in O.P.(C) is liable to be set aside and the Trial Court is liable to be directed to reconsider I.A.No.3451/2014 in the light of the tests laid down in the aforesaid decision. 19. Accordingly, R.F.A.Nos.81/2013 and 200/2014 are allowed setting aside the impugned judgments and decrees passed by the Trial Court. O.P.(c) No.1718/2015 is allowed setting aside Ext.P11 order and directing the Trial Court to dispose of I.A.No.3451/2014 afresh in accordance with the observations contained in the judgment if the plaintiffs in the suit want to prosecute the suit.