IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 WP(C).No. 28996 of 2009(O) -------------------------- OS.399/1990 of II ADDL.SUB COURT,THRISSUR .................... PETITIONERS: --------------- 1. C.REMA DEVI, KAILAS, KAIPARAMBU, THRISSUR. 2. PRASANNA, DO. DO. BY ADV. MR.G.UNNIKRISHNON MR.K.SANEESH KUMAR RESPONDENTS: --------------- 1. SATHI DEVI, 303, R.R.APARTMENTS BEACH ROAD, VISHAKAPATANAM, ANDHRA PRADESH. 2. SUNIL. DO. DO. 3. SAJITH, DO. DO. 4. PADMA, KRISHNAKRIPA, MUTHUVARA, THRISSUR. 5. RAJEEVAN, DO. DO. 6. RAVI MENON, 14, SATHIA BHAMA NIVAS, DOMBIVILLI, EAST THANA GURUMANDIR ROAD, MUMBAI. 7. SASI MENON, P.B.NO.26964, MANAMA, BAHARIN. 8. C.SUMA, PEEDIKAPARAMBIL HOUSE, POST PLULLOOR, KODUNGALLUR. (CNTD....2) WP(C).No. 28996 of 2009(O) ::2:: 9. RAGHU MENON, RAGHUNATH APARTMENT ROOM NO.9, 2ND FLOOR, CO-OPERATIVE HOUSING SOCIETY, DOMBIVILLI EAST, MUMBAI-421 201. 10. PREETHA, LAKSHMI NILAYAM, KONIKKARA, THALORE, THRISSUR DIST. 11. PRAMADA.C., C-8, VAGARAM COMPLEX, DHARAVI ROAD, VISHARANTAWADI, PUNE-400 015. 12. PUSHKIN, KAILAS, KAIPRAMBU, THRISSUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.28996 of 2009 - O --------------------------------- Dated this the 14th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To issue a writ of certiorari calling for the records leading to Exhibit P4 order dated 29.10.2008 and to quash the same.” 2. Petitioners are two among the plaintiffs in O.S.No.399 of 1990 on the file of the Sub Court, Thrissur. Respondents 1 to 10 are the defendants and respondents 11 and 12, the other two plaintiffs in the above suit, which was one for partition. The writ petition has been filed challenging the order of the court below declining the request of the plaintiffs for amending the final decree application for variation of shares allotted in the preliminary decree consequent to the death of the first defendant in the suit. Ext.P4 is the order passed by the learned Sub Judge dismissing the application of the plaintiffs/petitioners. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. W.P.(C).No.28996 of 2009 - O 2 3. Learned counsel for the petitioners/plaintiffs placing reliance on a number of authorities, which need not be referred to in the facts and circumstance of the case, submitted that even after the passing of the preliminary decree it is open to the court to alter or vary the decree consequent to the death of a coowner or transfer of the shares of a coowner necessitating a change in shares after passing of the preliminary decree. In other words, the submission is, even after a preliminary decree on an event which necessitate a change in shares, the court can and pass a preliminary decree varying the shares. There cannot be any quarrel to that proposition which is settled by the apex court in Phoolchand v. Gopal Lal (AIR 1967 SC 1470). The only rider to such change is that such variation can be done only so long as the final decree has not been passed. However, the question emerging for consideration in the present writ petition is whether there is any impropriety of illegality in the order passed by the learned Sub Judge in declining the request of the plaintiffs for variation of the shares on the death of the first defendant. Petitioners/plaintiffs contended that on the death of the first W.P.(C).No.28996 of 2009 - O 3 defendant her 1/15th share in the property devolved upon the plaintiffs and some other defendants and by which the plaintiff would get additional share of 1/120 in the suit property. Advancing such a case they sought for amendment of the final decree application. The application was objected to by the respondents 4 and 5 pointing out by virtue of the conclusive final decision rendered in the appeal against the preliminary decree by the judgment rendered by this Court there cannot be any variation of the preliminary decree on the death of the first defendant. Admittedly, the parties to the suit belong to a 'marumakkathayam tharavad' and the first plaintiff and fifth defendant in the suit are daughters of first defendant in the suit. The first defendant had executed B1 sale deed in favour of the fifth defendant. Competency of the first defendant to execute such a sale deed in favour of the fifth defendant apart from other issues, which are not relevant at this stage arose for adjudication in the suit. Trial court while passing the preliminary decree held that the firth defendant can only claim equitable relief for allotting share of the property purchased by her, as far as W.P.(C).No.28996 of 2009 - O 4 possible, into her share while taking separation of property during the final decree proceedings. In other words, whatever rights she got under Ext.B1 deed executed by her mother has to be limited to her share. She could only claim an equitable relief for allotting share of the property purchased but limiting it to her share was the finding of the trial court. However in the appeal preferred against the preliminary decree by the 10th defendant as A.S.No.179 of 2009 this Court has held that the fifth defendant shall be allotted as far as possible the property purchased by her as per Ext.B1 sale deed. Modifying the direction given in the preliminary decree by the trial court that the fifth defendant is entitled only to an equitable relief of getting the property purchased by her to the extent possible in the allotment of her share this Court held to the extent possible B1 property shall be allotted to the fifth defendant and if necessary taking in the share of the first defendant and/or the fifth defendant, so that possession of the fifth defendant under B1 deed is not disturbed to the extent possible. This Court has in unequivocal terms made it clear that the share of the first defendant shall be allotted in W.P.(C).No.28996 of 2009 - O 5 favour of the fifth defendant along with her share so that the possession of the fifth defendant under Ext.B1 is not disturbed to the extent possible. When that be so, the court below was perfectly justified in holding that no reallocation of shares as sought for on the death of the first defendant by modification of the preliminary decree by the plaintiffs can be entertained. Ingenious attempt by the petitioners/plaintiffs was to subvert the conclusive and authority pronouncement of this Court mandating the allotment of the share to the first defendant in favour of the fifth defendant so that her possession under B1 document is not disturbed to the extent possible, taking advantage of the death of the first defendant during the pendency of the final proceedings, and it was rightly spurned down and rejected by the court below. There is no merit in the writ petition and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-