IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR.JUSTICE THOMAS P JOSEPH FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 RSA.No. 71 of 2010() -------------------- AS.95/2008 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.633/1993 of PRL.MUNSIFF COURT.,TRIVANDRUM .................... APPELLANT/APPELLANT/PETITIONER (5TH DEFENDANT) -------------------------------------------------------- AYYAPPADAS, S/O. BHASKARAN, MOOZHIYIL VEEDU, KULATHOOR.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.S.D.ASOKAN RESPONDENT/RESPONDENT/RESPONDENT/ PLAINTIFF ------------------------ LALITHA BHAI, NJANJAMVILA VEEDU, VAYLARIKATHU MURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.71 of 2010A --------------------------------------- Dated this 29th day of January, 2010 JUDGMENT The second appeal arises from judgment of learned Additional District Judge-1, Thiruvananthapuram in A.S.No.95 of 2008 confirming dismissal of I.A.No.5097 of 2007 in O.S.No.633 of 1993 of the court of learned Principal Munsiff, Thiruvananthapuram. O.S.No.633 of 1993 is a suit for partition at the instance of respondent/plaintiff. The court passed a preliminary decree on 08-01-2002 (copy of which is marked as Ext.B2 in the present proceeding) as per which plaint A schedule property was found to be absolute property of the respondent and plaint B schedule was found to be partible among the appellant, respondent and other defendants (who are not made parties in this appeal) equally. Later, appellant/defendant No.5 filed I.A.No.5097 of 2007 requesting to pass a supplementary preliminary decree. That was refused by the trial court which the first appellate court has confirmed. Hence the second appeal urging by way of substantial questions of law whether appellant is entitled to share in the plaint schedule property; the courts below were right in dismissing the application to pass supplementary preliminary decree and whether courts below went wrong in construing the documents produced. Learned counsel for appellant, placing reliance on the decisions in R.S.A.No.71 of 2010 2 Perumal Vadyar and Ors. Vs. Devi and Ors. (1991 (1) KLJ 65), Koteswara Rao Vs. Bhaskara Rao (2009(2) KLT 670 (SC) and S.Satnam Singh and Ors. Vs. Surender Kaur and Another (2009 (2) SCC 562) argued that even in circumstances as brought out in this case, the court is not powerless to pass a supplementary preliminary decree or, to correct the preliminary decree taking into account circumstances brought on record. According to learned counsel, courts below have not adverted to this important legal aspect while dismissing I.A.No.5097 of 2007 and confirming that dismissal. 2. To understand the argument advanced by learned counsel, it is necessary to refer to some facts. Respondent brought the suit for partition claiming that plaint A schedule absolutely belonged to him as per a gift deed of the year 1980 (produced in the trial court before passing the preliminary decree). He claimed that plaint B schedule is partible among himself, appellant and defendant Nos.1 to 4 equally. According to him, plaint B schedule belonged to Madhavi, mother of himself, appellant and defendant Nos.2 to 4 and Mandakini, defendant No.1 (she died pending proceeding for preliminary decree) in equal proportion. Mandakini died issueless. Hence her half right in plaint B schedule devolved on respondent, appellant and defendant Nos.2 to 4 in equal proportion. Neither appellant nor defendant Nos.1 to 4 contested the suit. I am told that appellant/defendant No.5 filed R.S.A.No.71 of 2010 3 written statement but, thereafter he also remained silent. On the evidence on record preliminary decree was passed exempting plaint A schedule from partition and directing division of plaint B schedule among respondent No.1, appellant and defendant Nos. 1 to 4 in equal proportion. It is conceded, none preferred an appeal against that preliminary decree. 3. In the year, 2007 appellant/defendant No.5 came up with a request for passing a “supplementary preliminary decree”. His case is that as per Ext.A3 (marked in preliminary decree proceeding) partition deed of 1992 Mandakini (deceased defendant No.1) got right over plaint A and B schedules and while so, she executed Will No.45 of 1996 dated 01-09-1996 bequeathing her share to the appellant. Thus appellant got right over the entire share of Mandakini in plaint A and B schedules. He wanted a supplementary preliminary decree to be passed accordingly. That was opposed by respondent on the ground that it would amount to reopening the preliminary decree which has already become final. That objection was upheld by the courts below. 4. It is not disputed before me that Ext.A3 (marked in preliminary decree proceeding) partition deed based on which Mandakini has executed the Will was set aside by the court while passing the preliminary decree to the extent it concerned the plaint A schedule. Now, a new claim is attempted to be introduced by R.S.A.No.71 of 2010 4 appellant/defendant No.5 varying from the preliminary decree which is already passed and if permitted would necessitate re-agitating the issues already settled by the court while passing a preliminary decree. Question is whether such a course is permissible under the guise of passing a supplementary preliminary decree. In Koteswara Rao Vs. Bhaskara Rao (2009(2) KLT 670 (SC) what the Supreme Court stated is that in a partition suit, the court has power to amend shares suitably even if preliminary decree has been passed, if some of the members of the family to whom allotment was made in the preliminary decree died thereafter. There can be no doubt that any number of supplementary preliminary decrees can be passed in case of variation in the shares consequent to the death of members of the family arose. S.Satnam Singh and Ors. Vs. Surender Kaur and Another (2009 (2) SCC 562) was a case where an item of property included in the suit by way of amendment escaped the preliminary decree. Question considered was whether preliminary decree could be amended so that the item of property which escaped preliminary decree can also be brought in. The Supreme Court held that the court has the power to pass any number of preliminary decree and if necessary to amend the decree in such situation. Paragraph 22 of the decision highlighted by learned counsel states that section 97 of the Code of Civil Procedure (for short, “the Code”) which provides for R.S.A.No.71 of 2010 5 finality of preliminary decree does not in any way effect power of the court to entertain an application for amendment of preliminary decree and in paragraph 24 it was observed that power for such amendment would not only depend upon the power of the court but also the principle that the court shall always be ready and willing to rectify the mistake it has committed. Remember, that was a case where on account of a mistake committed by the court an item of property which was incorporated in the suit by amendment escaped the preliminary decree and the principle that no party shall be prejudiced by the act of court loomed large. 5. That is not the situation arising in the present case. Here, the court has already found that plaint A schedule is not partible and plaint B schedule is partible among the parties equally. The request in this case is not for any variation of share consequent to death of any of the parties but appellant wants overhauling of the entire decision on the strength of the Will now put up by him and allegedly executed by Mandakini. That does not, in my view come in the scope of a supplementary preliminary decree nor within the power of court to amend the preliminary decree. It is to be remembered that right or wrong, the court while passing the preliminary decree set aside Ext.A3 based on which the Will is allegedly executed. These are not matters to be decided in an application for passing a supplementary R.S.A.No.71 of 2010 6 preliminary decree. From the word 'supplementary preliminary decree' I understand, the decree to be passed must be supplementary to the decree already passed and not to set aside the preliminary decree which is already passed and which has become final and pass a fresh preliminary decree. This is clear from the decision in Perumal Vadyar and Ors. Vs. Devi and Ors. (1991 (1) KLJ 65). That decision states in detail the circumstance in which a supplementary preliminary decree could be passed. On going through the decision, I am unable to say that the present situation is one which enabled the court to pass either a supplementary preliminary decree or to amend the preliminary decree already passed. The remedy of the appellant if any, lies elsewhere. Having heard counsel for the appellant and gone through the judgment under challenge, I do not find any substantial question of law involved in the second appeal requiring its admission. Accordingly, without prejudice to the right if any of the appellant to seek appropriate remedy as provided under law, the second appeal is dismissed. THOMAS P JOSEPH, JUDGE Sbna/