IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 25TH MARCH, 2008 / 5TH CHAITHRA, 1930 AFA.No. 7 of 1999 ---------------------- (AGAINST THE JUDGEMENT IN AS.121/1994 Dated 05/03/1998) .................... APPELLANTS/RESPONDENTS/DEFENDANTS: 1. M.KOLAPPA PILLAI, RESIDING AT SANKARALINGA VILAS, T.C.28.242, VANCHIYOOR, TANK ROAD, THIRUVANANTHAPURAM. 2. MEENA, D/O.CHELLAMMA, T.C.25/3622, TANK ROAD, PUTHENCHANTHAI, THIRUVANANTHAPURAM. BY ADV. SRI.R.D.SHENOY (SR.) SRI.S.VINOD BHAT RESPONDENTS/APPELLANTS/PLAINTIFFS: 1. K.VADIVULEKSHMI, RESIDING AT NEERAZHI HOUSE, NEERAZHI LANE, ULLOOR, THIRUVNANTHAPURAM. 2. K.KOLAMMAL, RESIDING AT BHAGAVATHY VILASOM, DAIRY FARM ROAD, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2008, THE COURT ON 25/03/2008 DELIVERED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. --------------------------------------------- A.F.A.No. 7 of 1999 --------------------------------------------- Dated this the 25th day of March, 2008 J U D G M E N T Mohanan,J: The defendants in a suit i.e., O.S.No.316/1982 in the Court of the Subordinate Judge, Thiruvananthapuram are the appellants herein. In this appeal, the challenge is against the judgment dated 5.3.1998 of this Court in A.S.No.121 of 1994. The prayer of the appellants herein is to set aside the above mentioned judgment dated 5.3.1998 and to restore the revised preliminary judgment and decree dated 30.1.1993 in O.S.No.316 of 1982. According to the appellants, the judgment of this Court in A.S.No.121 of 1994 is illegal, arbitrary and perverse since the above judgment of this Court was passed without jurisdiction as the same was against the judgment of this Court in A.S.No.273 of 1984 whereby the case was remanded to the trial court for a revised judgment in the light of the observations and findings entered into by this Court in that judgment. According to the appellants, the revised preliminary A.F.A.No. 7 of 1999 :-2-: judgment and decree passed by the trial court is fully in terms of the remand order passed by this Court in A.S.No.273 of 1984 and hence the revised preliminary judgment and decree passed by the trial court has to be restored and the judgment of the learned Single Judge in A.S.No.121 of 1994 is to be set aside. 2. The suit is for partition filed by the respondents herein. At the time of filing the suit, originally there was only one defendant who is the first appellant herein. The second appellant herein was impleaded as the second defendant in the suit on the strength of the judgment of this Court in A.S.No.273 of 1984. 3. The plaint averments are as follows:- The plaintiffs and the first defendant are the children of late Madhavan Pillai and the plaint schedule property belonged to him as per the partition deed of 1119 M.E. After his death, the plaintiffs and the first defendant are entitled to the plaint schedule property in equal shares as they are legal heirs of deceased A.F.A.No. 7 of 1999 :-3-: Madhavan Pillai. According to the plaintiffs, the parties are Hindu Vellalas formerly governed by the Nanjinad Vellala Act and are at present governed by the Hindu Succession Act in the matter of inheritance and succession. So, according to the plaintiffs, they are entitled to 2/3 share and the first defendant is entitled to 1/3 share in the property. It is their further case that in spite of repeated demands and issuing lawyer notice finally to the first defendant to effect partition and settle the matter amicably, the first defendant was not prepared for the same and hence the suit was filed for partition and separate possession of 1/3 share each in the schedule property. 4. The first defendant had filed a detailed written statement raising the following contentions:- The deceased Madhavan Pillai had another son by name Sankaralingom Pillai who died on 11.9.1976. The schedule property was the ancestral property in the hands of Madhavan Pillai, to which the said Madhavan Pillai and his two sons alone are entitled to. The A.F.A.No. 7 of 1999 :-4-: deceased Madhavan Pillai had got 1/3 right only in the schedule property and the first defendant and his deceased brother Sankaralingom Pillai got 1/3 right each. It is also averred that the deceased Sankaralingam Pillai left behind his daughter Smt.Meena and she is entitled to get 1/3 share to which her father was entitled to. The mother of the plaintiffs, the first defendant and the deceased Sankaralingam Pillai owned and possessed 1 acre of land in Mannanthala in Trivandrum. According to the first defendant, there was an oral agreement in the year 1964 that in case that property in Mannanthala having an extent of 1 acre is given to the plaintiffs, they will not claim any right over the plaint schedule property and according to such settlement, the plaintiffs were given that 1 acre of property which belonged to the mother of the plaintiffs, the first defendant and the deceased Sankaralingam Pillai and hence, according to the first defendant, plaintiffs are estopped from claiming any share in the plaint schedule property. It is also averred A.F.A.No. 7 of 1999 :-5-: that the suit is bad for non joinder of parties as one of the sharers, Smt.Meena is not impleaded in the suit. It is also denied that the plaintiffs have requested for partition and further stated that they have already sent a reply to the lawyer notice sent by the plaintiffs. 5. Based upon the rival pleadings, the trial court initially framed seven issues and during the trial, evidences were adduced and the plaintiffs' evidence is only the oral testimony of PW1 and there was no documentary evidence from the side of the plaintiffs. From the side of defendants, Dws.1 to 3 were examined and they have produced Exts.B1 to B3 documents. Ext.X1 is also marked as the document produced by the witnesses. While answering issue No.3, the trial court has found that the plaint schedule property which was in the hands of late Madhavan Pillai is an ancestral property. Finally by judgment dated 31.3.1984, the trial court had found that at the time of death of Madhavan Pillai, he had 2/3 share in the plaint schedule property and since Madhavan Pillai had died subsequent to the A.F.A.No. 7 of 1999 :-6-: commencement of the Hindu Succession Act, as per Section 8 of the said Act, both the plaintiffs and the first defendant would get the said 2/3 share of late Madhavan Pillai in the plaint schedule property in equal shares and thus the court below found that each of the plaintiffs is entitled to get 1/3 of 2/3 share in the schedule property. Accordingly, a preliminary decree was passed declaring that each of the plaintiffs is entitled to 1/3 of 2/3 share in the plaint schedule property and the plaintiffs would apply for a commission to effect partition in the final decree. 6. Challenging the above finding and allotment of share, the first appellant, who is the sole defendant at that time, preferred A.S.No.273 of 1984 before this Court. Suffice to say, the plaintiffs therein who are the respondents herein did not file any appeal or cross objection against the finding of the trial court. Going by the judgment of this Court in A.S.No.273 of 1984, dated 17.3.1992 it can be seen that the only point which was materially raised before this Court was the paternity or A.F.A.No. 7 of 1999 :-7-: legitimacy of Smt.Meena who is the second appellant herein. No other point was canvassed for the consideration of this Court and as such, all other findings arrived on by the trial court in its judgment dated 31.3.1984 became final. In the appeal also, this Court found that admittedly, the plaint schedule property was the ancestral property of the family. By the same judgment, it was further found that the second appellant herein who was not a party to the suit is the legitimate daughter of late Sankaralingam Pillai who was none other than the son of late Madhavan Pillai- the father of the plaintiffs and the first defendant. This Court had also found that Smt.Meena was not made as a necessary party to the suit in spite of objection raised by the first defendant- the first appellant herein and therefore, this Court found that the suit was bad for non joinder of necessary parties. Thus, this Court remanded the suit to the lower court so as to enable the plaintiffs to implead Smt.Meena also as a party to the suit. Thus, it can be seen that in appeal, this Court had found that A.F.A.No. 7 of 1999 :-8-: the second appellant herein is a necessary party to the suit as she is also entitled to get share of the property and for such adjudication, the matter was remanded. The finding of this Court that the plaint schedule property was an ancestral property of the family has also become final as against the plaintiffs as the said finding is not challenged before any higher forum and that finding became final not only for the above reason, but for the reason that the trial court had also found that the property in question was the ancestral property of the family and that finding was not challenged by the plaintiffs. 7. Thus, on the basis of the remand order, i.e., judgment dated 17.3.1992 in A.S.No. 273 of 1984, the suit was again taken for consideration and in terms of the above judgment dated 17.3.1992, the second appellant herein had been impleaded therein as the second defendant as per order dated 27.7.1992 in I.A.No.2581 of 1992. Finally, by judgment dated 30.1.1993 in O.S.No.316 of 1982, the trial court A.F.A.No. 7 of 1999 :-9-: disposed of the suit giving a decree for partition and separate possession whereby it was held that each of the plaintiffs is entitled to get 1/12 share of the suit property and both the defendants are allowed to take 5/12 share each in the suit property. Further, as per the trial court judgment, the equitable relief claimed by the defendants would be considered in the final decree proceedings at the time of actual division. 8. Aggrieved by the trial court judgment dated 30.1.1993 in O.S.No.316 of 1982, the plaintiffs who are respondents herein preferred A.S.No.121 of 1994 before this Court. This Court by judgment dated 5th March, 1998 found that the suit property originally belonged to Mrs.Kolamma Ammal, mother of late Madhavan Pillai and not an ancestral property in his hands. On the basis of such finding, this Court further held that on Madhavan Pillai's death, his four children, who are two plaintiffs, first defendant and late Sankaralingam Pillai take ¼ share each and late Sankaralingam Pillai's share devolved on the second A.F.A.No. 7 of 1999 :-10-: appellant/second defendant. Thus, accordingly, the appeal was allowed and the revised preliminary decree passed by the trial court is modified declaring that the plaintiffs are entitled to ½ share, first defendant is entitled to ¼ share so also the second defendant is entitled to ¼ share in the property. The above finding and allotment of shares are challenged in this appeal. 9. We have heard learned Senior counsel appearing for the appellants Sri.R.D.Shenoi and Mr.G.S.Reghunath, learned counsel appearing for the respondents. 10. In his persuasive argument, Mr.R.D.Shenoi, the Senior Counsel submits that the ancestral property of late Madhavan Pillai belongs to the plaintiffs, the first defendant who are the children of late Madhavan Pillai and Smt.Meena, daughter of late Sankaralingam Pillai. According to counsel, the property in question originally belonged to one late Sankaralingam Pillai (Senior), the father of late Madhavan Pillai and late Madhavan Pillai got the property as per Ext.B1 partition deed dated A.F.A.No. 7 of 1999 :-11-: 13.7.1119. From Ext.B1, it is crystal clear that the property originally belonged to late Sankaralingam Pillai (Senior) who purchased the same with his own funds. The learned Senior counsel submits that the specific case put forward by the defendants is that the property in question was the ancestral property in the hands of late Madhavan Pillai which was inherited from his father late Sankaralingam Pillai (Senior) and therefore, according to the defendants, late Madhavan Pillai and deceased Sankaralingam Pillai have got right by birth in the property even during the life time of their father. Thus, it is submitted that the share due to the brother deceased Sankaralingam Pillai will be vested on his daughter Smt.Meena who is the additional second defendant. The learned counsel further argued that the trial court had held that the suit property is the ancestral property in the hands of late Madhavan Pillai, but it was found that the second appellant/second defendant was not a legitimate issue of the deceased Sankaralingam Pillai who is the brother of the first A.F.A.No. 7 of 1999 :-12-: defendant/the first appellant herein. It is also pointed out by counsel that as per the earlier finding of the trial court, each of the plaintiffs is entitled to claim 1/3 out of 2/3 share and the first defendant is entitled to get 1/3 share. According to the learned counsel, those findings of the trial court are final as far as the plaintiffs are concerned as they did not challenge those findings. Counsel further pointed out that it is the first appellant who challenged the judgment of the court below to the extent to which it was held that each of the plaintiffs is entitled to claim 1/3 out of 2/3 share of the property and the first defendant is entitled to the only remaining 1/3 share and there was no share to the illegitimate daughter of the deceased Sankaralingam Pillai. So, according to counsel, the finding of the trial court that the property in question was an ancestral property of the family became final. 11. It is further argued by the learned Senior counsel that the above findings of the trial court are not challenged in appeal by the plaintiffs, and those contra A.F.A.No. 7 of 1999 :-13-: contentions were not taken even at the time of hearing of the appeal which was preferred by the first defendant i.e.,A.S.No.273 of 1984. By judgment dated 17.3.1992 in A.S.No.273 of 1984, this Court had found that the property in question is an ancestral property and also found that the second appellant herein who was not impleaded as necessary party to the suit is entitled to get share in the property and for that purpose and for the proper allotment of share to the second appellant, the suit was remanded with a direction for impleading the second appellant as additional defendant in the suit. On the basis of the above materials, the learned counsel for the appellants fervently submits that the finding arrived on by both the trial court as well as this Court in appeal, that the property in question is an ancestral property in the hands of late Madhavan Pillai became final and the said finding is not disturbed in any appeal or other proceedings in any other higher forum. Therefore, according to the learned counsel, the finding arrived by this Court as per the impugned judgment is A.F.A.No. 7 of 1999 :-14-: not correct and beyond its appellate jurisdiction. Another point advanced by the learned counsel for the appellants is that the finding of the trial court as well as this Court regarding the legitimacy of the second appellant/second defendant Smt.Meena is also not challenged by the plaintiffs and therefore, the second appellant/second defendant is also entitled to get share in the plaint schedule property and the only point to be determined is the extent of share to be allotted to the parties in the suit and how the same shall be allotted. 12. Per contra, Mr.G.S.Raghunath, learned counsel appearing for the respondents, supporting the finding arrived on by this Court in A.S.No.121 of 1994 submits that the property in question is not an ancestral property, but it is a self acquired property of late Sankaralingam Pillai (Senior), the grandfather of the plaintiffs and the first defendant. According to learned counsel for the respondents, by judgment dated 17.3.1992 in A.S.No.273 of 1984, this Court had remanded the matter for fresh disposal and it was an A.F.A.No. 7 of 1999 :-15-: open remand and hence, fresh issues can be raised. It is also submitted by counsel that the findings of the trial court initially were wrong and based upon the remand order, the matter was considered again and therefore, they can challenge all the wrong findings arrived on by the court below initially. According to counsel, the real position is clear from Ext.B1 document that the property was purchased by late Sankaralingam Pillai (Senior) by using the dowry amount and hence it cannot be said that it is an ancestral property, but on the other hand the wife of late Sankaralingam Pillai (Senior) has also right over the property. Thus, supporting the judgment of the learned single Judge, the learned counsel for the respondents submits that there is no ground to interfere by this Court in appeal, against the finding arrived on by the learned Single Judge. 13. We have anxiously considered the rival contentions and also perused the materials and the evidence available on record. We have carefully perused the judgments of the trial court and also the judgments A.F.A.No. 7 of 1999 :-16-: of the learned Single Judge of this Court. 14. As mentioned earlier, while answering to issue No.3 in para 8 of the trial court judgment dated 31.3.1984, the trial court had held that so by birth, the first defendant and his brother late Sankaralingam Pillai got right in the schedule property, which was in the hands of late Madhavan Pillai as ancestral property as per Ext.B1. It was also found that late Madhavan Pillai had only 1/3 right. Since Smt.Meena, the second appellant/second defendant was found to be the illegitimate child of late Sankaralingam Pillai by the trial court, on his death, his 1/3 right in the schedule property devolved on late Madhavan Pillai as his legal heir. So according to the trial court, at the time of death of Madhavan Pillai, he had 2/3 share in the schedule property and since Madhavan Pillai died subsequent to the Hindu Succession Act, both the plaintiffs and the first defendant would get the said 2/3 share of Madhavan Pillai in the schedule property in equal shares. So, according to the trial court, the property in A.F.A.No. 7 of 1999 :-17-: question is an ancestral property of late Madhavan Pillai and the first defendant is entitled to 1/3 share of the plaint schedule property. Though the trial court found that the property in question was an ancestral property, allotment was made in such a manner only on the finding and footing that Smt.Meena is not a legitimate child of the deceased Sankaralingam Pillai. Since the plaintiffs did not challenge the above finding or in the absence of any cross objection in the appeal suit preferred by the plaintiffs in A.S.No.273 of 1984, the above finding of the trial court has become final and the plaintiffs are estopped from re-agitating the issue. 15. It is equally important to note that the trial court during the trial, after the remand, confined to the points as discussed and directed by this Court at the time of disposing of the appeal and therefore, there is no illegality committed by the trial court while disposing of the suit. But, on the other hand, this Court at the time of disposing of A.S.No.121 of 1994 under the guise of appeal went beyond the scope of the remand order and A.F.A.No. 7 of 1999 :-18-: such exercise of the powers virtually barred by the principles of res judicata. The operative portion of the order of remand reads as follows:- “The court below shall dispose of the suit having regard to the finding of this Court that Meena is the legitimate daughter of Sankaralingam Pillai and the court shall re-allot the shares to the parties in accordance with law.” From the above order of remand, it is crystal clear that the task given to the trial court is to re-allot the shares to the parties in the light of the finding of this court in appeal that Smt.Meena who is the second appellant herein/additional second defendant is the legitimate daughter of late Sankaralingam Pillai. The other issue whether the property is an ancestral property, has already been settled as per the finding of the trial court as per its preliminary judgment and as per the finding of this Court in appeal at the first time. As stated earlier, the above findings of the trial court as well as this Court became final since the respondents herein who are the plaintiffs did not challenge the above finding of this A.F.A.No. 7 of 1999 :-19-: Court, in appeal or in any other forum and also due to the failure of the plaintiffs in challenging the finding of the trial court by filing an appeal or by filing a cross objection in A.S.No.273 of 1984. In the above circumstances, the trial court has rightly confined to the points for which the case was remanded and hence in appeal, this Court ought not have reopened the issue regarding the nature of the property and such an interference will amount to indirect interference with the remand order and such interference is impermissible. Even otherwise, the same is barred by the principles of res judicata. 16. In this respect, it is relevant to refer to a decision of this Court in Saraswathy Amma v. Karthiyani Pillai (2008(1) KLT 784). In the said decision, this Court had held in para 4 as follows:- “Had the Appellate Court dismissed the appeal in toto the aggrieved party could have maintained a Second Appeal. Of course that can only be in accordance with the provisions contained in S.100 of Civil Procedure Code. The appellant in that Second Appeal is not entitled to A.F.A.No. 7 of 1999 :-20-: agitate questions of fact. It is to be noted that if the order of remand is in the nature of an interlocutory order the parties are not aggrieved. But if the Appellate Court decides any point and remands the case for reconsideration of other point, the aggrieved party must challenge those findings by filing a Miscellaneous Appeal before this Court. If he fails to challenge the point decided by the Appellate Court on its merits he will be precluded from challenging the correctness of that finding at a subsequent stage. So the aggrieved party is entitled to challenge all concluded findings of the lower Appellate Court in a remand order. But that challenge can only be in accordance with the provisions contained in S.100 of Civil Procedure Code. The party cannot challenge a finding of fact on the ground that the appeal is against an order of remand. So an aggrieved party can challenge concluded findings in an order of remand provided substantial questions of law arise. If the contention of the respondents is accepted, the aggrieved party will be left without any remedy. He will not be in a position to challenge the points decided by the lower Appellate Court by filing a C.M.A. He will not be in a position to challenge the correctness of that finding in a regular appeal to be filed against the decree passed after remand as the same is barred by res judicata.” In another decision in Neelakanta Pillai v. Madhava Kurup (2007(2) KLT 340), a learned Judge of this Court A.F.A.No. 7 of 1999 :-21-: had held that the appellate court had confirmed the findings of the trial court that the plaintiffs are not entitled to get a permanent prohibitory injunction and that they are not entitled to get a decree for fixation of boundary. It was also held that the remand was made only for the limited purpose of claiming the relief of recovery of possession based on title and for incorporating a relief for declaration of title. It was also held that the plaintiffs are, therefore, not entitled to circumvent the remand order and get nullified the findings therein under the guise of