IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 RFA.No. 16 of 2008 AGAINST THE ORDER DATED 22/09/2006 IN FDIA.6675/2000 IN OS.310/1998 of III ADDL.SUB COURT, KOZHIKODE APPELLANT/PETITIONER/PETITIONER: M.JAYACHANDRAN ,S/O.NARAYANI AMMA RESIDING AT KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER P.A.RAMANKUTTY KURUP, S/O.UNICHATHAN NAIR,RESIDING AT KRISHNA KRIPA POST CHULOOR, VIA NIT CAMPUS,KOZHIKODE 673 601. BY ADVS. M/S.V.V.SURENDRAN & P.A.HARISH RESPONDENTS: RESPONDENTS : 1. MANNATHUR BHASKARAN,S/O.KALYANI AMMA, RESIDING AT KUNNAMANGALAM AMSOM DESOM KOZHIKODE TALUK. 2. MANNATHUR NARAYANAN NIAR, S/O.KALYANI AMMA, RESIDING AT KUNNAMANGALAM AMSOM DESOM KOZHIKODE TALUK. 3. MANNATHOOR MEENAKSHMI AMMA D/O.KALYANI AMMA,RESIDING AT KUNNAMANGALAM AMSOM DESOM KOZHIKODE TALUK. 4. M.RAVEENDRAN,S/O.NARAYANI AMMA RESIDING AT KUNNAMANGALAM AMSOM DESOM KOZHIKODE TALUK. 5. M.SURESH BABU,S/O.NARAYANI AMMA RESIDING AT KUNNAMANGALAM AMSOM DESOM KOZHIKODE TALUK. R1 TO R3 BY ADV. SRI.R.SUDHISH SMT.M.MANJU R4 TO R6 BY ADV. SRI.V.R.JAIKRISHNAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON 25/11/2009 PASSED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ------------------------------------------------------------- R.F.A.NO. 16 OF 2008 B ------------------------------------------------------------- Dated this the 25th day of November, 2009 JUDGMENT K.T.Sankaran, J. The Appeal is filed by the appellant/petitioner against the order dated 13.2.2007 in F.D.I.A.No.6675 of 2000 in O.S.No.310 of 1998, on the file of the Court of the Subordinate Judge of Kozhikode. The appellant filed the suit for partition of three items of immovable properties. A preliminary decree was passed on 20.1.2000. The appellant filed F.D.I.A.No.6675 of 2000 for passing the final decree. 2. As per the preliminary decree, three items of immovable properties are to be partitioned. Two of the items are situated in Chavakkad, while the other item is situated in Kozhikode. As per the preliminary decree, the plaintiff is entitled to 1/20 share, defendants 1 to 4 are entitled to 4/20 shares each and defendants 5, 6 and 7 are entitled to 1/20 share each. 3. In the final decree proceedings, a Commissioner was appointed as per the order dated 27.10.2001. The Commissioner could not complete the work due to the non co-operation of some of the sharers. R.F.A. NO.16 OF 2008 :: 2 :: 4. While so, I.A.No.363 of 2001 was filed by respondents 1 and 2 in the final decree application stating that the third respondent in the final decree application, namely, Sathyabhama, relinquished her rights in favour of them, as per the relinquishment deed No.655 of 2000 dated 29.4.2000, Sub Registrar's Office, Kottapady. Respondents 1 and 2 in the final decree application prayed for allotting the shares of Sathyabhama in their favour. The final decree petitioner opposed the application. It was contended that respondents 1 and 2 in the final decree application did not get any right in the share belonging to Sathyabhama. It would appear that I.A.No.363 of 2001 was later withdrawn on 25.2.2006. 5. Thereafter, respondents, 1,2 and 4 filed I.A.No.817 of 2006 in the final decree application to pass a supplementary preliminary decree. Curiously enough the name of Sathyabhama is also shown as third petitioner in the application though she was dead by that time. 6. The final decree petitioner filed objections to I.A.No.817 of 2006 and contended that Sathyabhama had not executed the relinquishment deed dated 29.4.2000 in favour of respondents 1 and 2 in the final decree application. It was contended that the document is a fabricated one. R.F.A. NO.16 OF 2008 :: 3 :: 7. The court below held that the application filed by respondents 1 to 4 in the final decree application is not maintainable in the final decree proceedings. It was held that the dispute between the parties with respect to the genuineness of the relinquishment deed cannot be adjudicated upon in the final decree proceedings. I.A.No.817 of 2006 was accordingly dismissed. Respondents 1 to 4 in the final decree application were directed to move for passing a supplementary preliminary decree. 8. It is submitted by the learned counsel for the appellant that consequent on the dismissal of I.A.No.817 of 2006 and the direction to move the Court for passing a supplementary preliminary decree, the court below has also dismissed the final decree application by the order dated 13.2.2007. According to the counsel, this procedure adopted by the court below is illegal. 9. We find force in the submission made by the learned counsel for the appellant. The court below rightly found that the remedy of respondents 1,2 and 4 in the application for passing the final decree is to apply for passing a supplementary preliminary decree. The question whether the relinquishment deed is genuine or not cannot be decided in the final decree proceedings. The court dealing with the final decree R.F.A. NO.16 OF 2008 :: 4 :: application can only proceed in accordance with the preliminary decree in force. At present, the preliminary decree that is in force is the one dated 20.1.2000. The relinquishment deed relied on by respondents 1 and 2 in the final decree application is dated 29.4.2000, that is, after the date of passing of the preliminary decree. Therefore, there was no justification for the court below to dismiss the final decree application. The order dated 13.2.2007 in F.D.I.A.No.6675 of 2000 is, therefore, set aside. The final decree application shall stand restored to file. The court below shall dispose of the final decree application in accordance with law. It is made clear that if the court were to pass a supplementary preliminary decree, the rights of the parties can be worked out accordingly. It is also made clear that the order dated 13.2.2007, in so far as it relates to the granting of additional remuneration to the Commissioner, is not interfered with. The Regular First Appeal is allowed as indicated above. (KURIAN JOSEPH) Judge (K.T.SANKARAN) Judge ahz/