IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 RSA.No. 140 of 2011 --------------------------------- AS.10/2008 of I ADDL.SUB COURT, KOZHIKODE OS.514/2005 of I ADDL.M.C., KOZHIKODE .................... APPELLANT/1st RESPONDENT/1st DEFENDANT: MAVUPOYIL VISWANATHAN, AGED 47 YEARS, S/O UNNIKORAN, RESIDING AT KIZHAKKUMMURI DESOM, PADINHATTUMMURI AMSOM, KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SMT.RESMI NANDANAN RESPONDENTS/APPELLANT/R2/PLAINTIFF & D2: 1. G.GANGADHARAN, S/O UNNIKORAN, PADINHATTUMMURI AMSOM, KIZHAKKUMMURI DESOM, KOZHIKODE TALUK, KOZHIKODE - 673 611. 2. M.APPUTTY, AGED 57 YEARS, S/O UNNIKORAN, PADINHATTUMMURI AMSOM, KIZHAKKUMMURI DESOM, KOZHIKODE TALUK, KOZHIKODE - 673 611. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.140 of 2011 -------------------------------------- JUDGMENT First defendant in O.S.No.514/2005 on the file of Additional Munsiff's Court-I, Kozhikode is the appellant. First respondent is the plaintiff and second respondent, the second defendant. Plaint schedule property originally belonged to Kalyani. She gifted the property in favour of appellant and deceased Sarasa, her children. Sarasa was mentally retarded. O.S.No.300/1998 was filed for partition of that property by Sarasa with first respondent as her next friend. A preliminary decree and final decree were passed, where under, plaint B schedule property was allotted to the share of Sarasa. On the death of Sarasa, suit was filed claiming partition and separation of the share of the first respondent, contending that share of Rukmini, Malukutty, Balamani and Rema were assigned in his favour under Exhibit A5. The suit was resisted on the ground that though Exhibit A1 final decree was passed, it was not engrossed in non judicial stamp paper and therefore, no right could be claimed thereunder. RSA 140/11 2 2. Learned Munsiff, finding that right under a final decree can be claimed only if the final decree is engrossed on the requisite stamp paper as held by this Court in Krishanna Alva v. Deyyakku (1991 (2) KLT 602) and the Honourable Supreme Court in Balwant Lokhande (dead) v. Chandrakant Shankar Lokhande (AIR 1995 SC 1211), dismissed the suit. First respondent challenged the judgment before I Additional Sub Court, Kozhikode in A.S. No.10/2008. By that time, final decree was engrossed in non judicial stamp paper. In the appeal, first respondent produced Exhibit A6, certified copy of the final decree engrossed in non judicial stamp paper with a petition under Order XLI Rule 27 of Code of Civil Procedure to receive it as additional evidence. Learned Sub Judge received the same as Exhibit A6 and finding that under Exhibit A6 final decree, plaint B schedule property was allotted to the share of Sarasa, granted a preliminary decree. This second appeal is filed challenging the said preliminary decree. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that when the suit was instituted, there was no final decree in existence, as the final RSA 140/11 3 decree passed was not engrossed in non judicial stamp paper and therefore, a suit for partition of a share allotted in such a final decree cannot be entertained. Learned counsel also pointed out that though, subsequently, final decree was engrossed in non judicial stamp paper, that order is challenged before this Court in a civil revision petition and it is pending. It is, therefore, argued that whether suit is maintainable without a valid final decree is a substantial question of law to be settled. 5. The fact that plaint schedule property originally belonged to Kalyani and it was gifted in favour of Sarasa and appellant and Sarasa, through her next friend, instituted O.S.No. 300/1998 for partition of her half share and a preliminary decree was passed and though it was challenged in A.S.No.66/2003 by the appellant, appeal was dismissed under Exhibit A3 and subsequently, Sarasa filed I.A.No.1433/2003, an application for passing a final decree and a final decree was passed on 28.2.2005 under Exhibit A1 judgment are all admitted. The only contention raised was that as that final decree was not engrossed in non judicial stamp papers, a suit for partition of the share allotted to Sarasa under that final decree is not RSA 140/11 4 maintainable. True, when the suit was instituted, there was no final decree engrossed in non judicial stamp paper. After production of non judicial stamp paper, final decree was engrossed, evidenced by Exhibit A6. Validity of production of non judicial stamp paper is not a ground to interfere with the preliminary decree passed by the first appellate court, as, there exists a valid final decree. 6. Learned counsel appearing for the appellant then submitted that there is a house in the plaint schedule property where appellant has been residing and it is to be reserved in his favour. The question of reservation is to be decided in the final decree and hence, it is left open to be decided in the final decree. It is seen from the operative portion of the judgment that there is a clerical error in the shares allotted to defendants 1 and 2. Instead of 1/7 share each, it is wrongly stated as 1/5 share, which is evidently, a clerical error or typographical error. I find no substantial question of law involved in this appeal. Appeal is dismissed. 16th February, 2011 (M.Sasidharan Nambiar, Judge) tkv