IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 RSA.No. 792 of 2011() --------------------- AS.35/1999 of ADDL. DISTRICT COURT, KOZHIKODE-III OS.56/1997 of SUB COURT, VADAKARA .................... APPELLANT ----------------------------- P.K.KUNJAPPA @ KUNJAPPA KURUP,S/O.RAMA KURUP, AGED 70 YEARS, POTHIKANDIYIL HOUSE, P.O.MAYYANNUR,VADAKARA, KOZHIKODE DISTRICT, R/A.HOUSE NO-E-98,YOJI-YORA AREA, POKKAM TOWN, POST ALONG,WEST SIANG, ARUNACHAL PRADESH BY ADV. SRI.GHOSH YOHANNAN SRI.K.RAKESH ROSHAN RESPONDENT(S): --------------- 1. POTHIKANDIYIL DEVI AMMA, D/O.RAMAKURUP AGED 53 YEARS, R/A.MARUTHOLI HOUSE, KDAMERI AMSOM DESOM, P.O.KDAMERI,(VIA)VADAKARA, KOZHIKODE DISTRICT 2. POTHIKANDIYIL GOPALA KURUP, S/O.RAMAKURUP,AGED 67 YEARS, POTHIKANDIYIL HOUSE, VILLAPPALLY AMSOM, MAYYANNUR DESOM,VADAKARA TALUK, KOZHIKODE DISTRICT ADV. SRI.C.VALSALAN FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.792 of 2011 ............................................ DATED THIS THE 26th DAY OF AUGUST, 2011 JUDGMENT Appellant was not a party before the trial court or first appellate court. O.S.56 of 1997 was filed by the first respondent for partition of the plaint schedule property, impleading the second respondent as the sole defendant. Partition was claimed contending that item No.1 of the plaint schedule property was alloted to the share of Kunhappa Kurup under Ext.A1 will dated 10.9.1994 executed by Ramakurup and Kunhappa Kurup is presumed to be dead as he was not heard since 1967 and respondents are only the surviving legal representatives of Rama Kurup, the testator under the will. Sub Court, Vadakara on 30.10.1998, passed a preliminary decree directing division of item No.1 of the plaint schedule property into two equal shares and allotment of one share to the first respondent. In view of the finding that first respondent is not entitled to get the gift deed cancelled, it was held that first respondent is not entitled to a decree for partition of item No.2 of the plaint schedule property. RSA 792/2011 2 Plaintiff/first respondent herein filed A.S.35 of 1999 challenging the decree. The challenge was only against refusal to grant a decree for partition of item No.2 of the plaint schedule property. Learned Additional District Judge, Kozhikode dismissed the appeal and confirmed the preliminary decree. First respondent challenged the decree before this court in RSA 929 of 2003. Respondent filed a cross-objection. It was contended by the respondent that the preliminary decree for partition of item No.1 of the plaint schedule property is not sustainable as the decree was granted on the presumption that Kunhappa Kurup to whom item No.1 was bequeathed under the will dated 10.9.1974 is no more, but the said Kunhappa Kurup is alive and therefore the property cannot be divided. While the appeal was pending, Kunhappa Kurup filed I.A.1543 of 2007 in the said appeal to get himself impleaded contending that he is alive and his exclusive property cannot be divided. In view of the application, this court directed Sub Judge, Vadakara, to conduct an enquiry into the question whether petitioner in I.A.1543 of 2007 is Kunhappa RSA 792/2011 3 Kurup, the son of late Ramakurup, the legatee under the will. The Sub Judge was directed to record evidence, enter a proper finding on the question and together with the evidence recorded, transmit the finding to this court. To facilitate the enquiry, Registry was directed to send the records to the trial court. The parties, including the petitioner in I.A.1543 of 2007, were directed to appear before Sub Court, Vadakara on 5.4.2010. As directed by this court, Sub Judge conducted a detailed enquiry and rendered the finding dated 22.5.2010 that petitioner in I.A.1543 of 2007 is Kunhappa Kurup, the son of Rama Kurup. In view of the said finding, learned counsel appearing for the first respondent, appellant in RSA 929 of 2003 submitted that he is not pressing the appeal. Consequently, by order dated 15.7.2010, the appeal was dismissed. 2. Appellant is the Kunhappa Kurup, son of Ramakurup, who is the legatee under the will of Ramakurup and the petitioner in I.A.1543 of 2007. The appeal is filed in view of the preliminary decree passed in O.S.56 of 1997, whereunder the property RSA 792/2011 4 obtained by the appellant under Ext.A1 will therein was directed to be divided, drawing a presumption that as appellant was not heard of, he is presumed to be dead. 3. Appellant filed I.A.2482 of 2010, an application for granting leave to file the appeal as he was not a party to the suit or the first appeal. Notice was ordered to the respondents. First respondent, the plaintiff in the suit was served. He did not file objection to the application. Thereafter as per order dated 11.7.2011, taking note of the finding of Sub Judge, Vadakara, pursuant to the directions in RSA 929 of 2003 as well as the order passed by this court in that appeal, leave was granted to file the appeal. Appeal was then posted for admission. 4. It is to be noted that though a preliminary decree was passed for division of item No.1 of the plaint schedule property with the second respondent alone as the defendant, second respondent did not challenge the preliminary decree. Though partition was sought in respect of item No.2 of the plaint schedule property, trial court did not grant the relief. First RSA 792/2011 5 respondent filed an appeal challenging the refusal of the trial court to grant a decree for partition in respect of item No.2 of the plaint schedule property. Therefore, there was no first appeal as against the preliminary decree in respect of item No.1 of the plaint schedule property. Strictly, in such circumstances, a second appeal will not lie as against the preliminary decree in respect of item No.1, which was not challenged before the first appellate court, though the appellate court decree shows that trial court decree was confirmed. That confirmation could only be in respect of item No.2 of the plaint schedule property. In such circumstances, technically, a second appeal will not lie. 4. Whatever it be, I do not find any necessity to entertain a second appeal against the preliminary decree in respect of item No.1 of the plaint schedule property in view of the disposal of R.S.A.929 of 2003. The preliminary decree is for division of item No.1 of the plaint schedule property which admittedly belongs to the appellant. Partition was sought and it was granted solely on the assumption that appellant is no more. When appellant is still RSA 792/2011 6 alive, the property cannot be divided as it does not belong to the respondents. As appellant is not a party to the suit, the preliminary decree will not be binding on him, especially when he is alive and preliminary decree was passed on the incorrect assumption that he is not alive. I find no necessity to interfere with the decree, as the decree is unexecutable. It is declared that the preliminary decree in O.S.35 of 1999 on the file of Sub Court, Vadakara is not binding on the appellant or on item No.1 of the plaint schedule property. Appeal is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE lgk