IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 AS.No. 479 of 2001() ----------------------------- OS.248/1995 of SUB COURT, PAYYANNUR .................... APPELLANT(S): PLAINTIFFS ----------------------------------------- 1. ANJILLATH AHAMMED, S/O. AVVA UMMA, NORTH THRIKARIPUR VILLAGE, P.O. THRIKARIPUR. 2. BROTHER, SHAHU HAMEED, DO. DO. 3. ABDUL KHADER, BROTHER, DO. DO. 4. ABDUL RAHIMAN, BROTHER , DO. DO. 5. THELAPRATH MUHAMMED KUNHI, S/O. ABDULLA HAJI, DO. DO. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): DEFENDANT -------------------------------------------- 1. KANNADA SUSHEELA, D/O. MADHAVI, VELLUR AMSOM, KANDOTH DESOM, P.O.KANDOTH, TALIPARAMBA. 2. KANNADA NANDINI, DO. DO. 3. SOUDAMINI, W/O. LATE KANNADA KUTTIKRISHNAN, DO. DO. 4. SUDHEERA, D/O. DO. DO. 5. SUJATHA, D/O. DO. DO. 6. SUDHEER, S/O. DO. DO. 7. SUNIL KUMAR, S/O. DO. DO. A.S. NO.479/2001 8. THARAMMAL NALINI, W/O. LATE SUKUMARAN, KOOVERI AMSOM DESOM, TALIPARAMBA. 9. MANU S/O. DO. DO. 10. KATTOOR LAKSHMI, W/O. LATE KUNHIKANNAN, VELLUR AMSOM DESOM, KANDOTH P.O.VELLUR. 11. SUNILKUMAR, S/O. DO. 12. SUNANDA, D/O. DO. DO. 13. SUDEVAN, S/O. DO. DO. 14. SUJITH, S/O. DO. DO. 15. KANNADA DAMAYANDHI, D/O. LATE KALLIANI, DO. DO. 16. KANNADA NARAYANA, D/O. LATE MADHAVI, PAPPINISSERI AMSOM DESOM. 17. K.P.VALSALA, W/O. LATE PADMANABHAN, TALIPARAMBA AMSOM DESOM. 18. BINDU, D/O. DO. DO. 19. BINIL VALA, S/O. DO. DO. 20. SHABARANI, DO. DO. 21. MANIKANDAN, S/O. DO. DO. 22. KAVIL LAKSHMI, W/O. LATE KANNADA NARAYANAN, DO. DO. 23. INDIRA, D/O. DO. DO. 24. BABY NISHA, D/O. SATHI, TALIPARAMBA AMSOM DESOM. 25. THOTTADA VEETTIL SREEDEVI, W/O. LATE KANNADA SREEDHARAN, PANAPUZHA AMSOM, PARAVUR DESOM, KANNUR TALUK. A.S. NO.479/2001 26. KATTOOR SHAJI, D/O. SUMAJA, (MINOR), VELLUR AMSOM DESOM P.O. KANDOTH. 27. KATTOOR SHEETHAL(MINOR), D/O. LATE SUMAJA, DO. DO. (RESPONDENTS 26 AND 27 ARE REP.BY THE GUARGIAN 10TH RESPONDENT KATTOOR LAKSHMI.) (RESPONDENTS 1 TO 14, 16 TO 24, 26 AND 27 ARE DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF THE APPELLANTS AS PER ORDER IN IA.1017/03 . R15 BY ADV. SRI.CIBI THOMAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 479 OF 2001 = = = = = = = = = = = = = = = Dated this the 8th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Payyannoor in O.S.248/95. The suit is one for partition and separation of 1/16 shares due to the plaintiffs. The plaint schedule is described as the property having an extent of one acre and 5 cents. The brief facts necessary for the disposal of the appeal are stated as follows. The plaintiffs by virtue of Ext.A6 document dated 8.5.89 had purchased six cents of property from one Kunhikannan. According to the document Kunhikannan had obtained the said property from Sreedharan and thereafter he has transferred six cents of property comprised in 128/2B for a valid consideration of Rs.12,000/- A.S. 479 OF 2001 -2- in favour of the plaintiffs. The document Ext.A5 is dated 4.9.84 whereby Sreedharan has transferred the property to Kunhikannan. As per the recitals in that document Sreedharan had obtained the property by virtue of a division between him and Damayanthi, 16th defendant in the case and he was set apart B schedule and that he has transferred that property to Kunhikannan. So it is how the plaintiffs devolution of right is stated. 2. On the contra it can be seen from the materials available, there was a suit for partition between the members of the family as O.S.50/88. In that case Damayanthi, 16th defendant herein was the 3rd defendant and Sreedharan(18th defendant herein) the assignor to Kunhikannan was the 5th defendant. There was a preliminary decree for partition passed in that A.S. 479 OF 2001 -3- suit which is marked as Ext.A10. As per the preliminary decree defendants 3 to 6, i.e. Damayanthi, Narayani, Sreedharan and Padmanabhan were ordered to be jointly allotted 12/60 shares. The said preliminary decree was passed on 30th July, 1988. It has to be remembered that Ext.A5 document was executed and Ext.A6 after the passing of the preliminary decree by the Court. Or in other words the plaintiffs were transferees pendente lite and therefore they are bound by the subsequent events as it will be hit by lis pendens. Thereafter the parties moved an application for final decree and the final decree was compromised between the parties whereby the B schedule in the compromise was set apart to the share of the 3rd defendant Damayanthi. It is recited in the compromise petition that she had purchased the right of A.S. 479 OF 2001 -4- others 4 to 6 including that of Sreedharan. Therefore by virtue of the final decree the parties had divided the property into different shares and B schedule was set apart to the share of said Damayanthi. It can be seen from the compromise petition as if Sreedharan (who is D18 herein) and D5 in the original suit of 1988 had transferred his right in favour of Damayanthi but when the written statement is filed in this case it is given a go by and it is stated only D4 and D6 had transferred the right in favour of D3. Therefore it has to be stated that the right of D5 in O.S.50/88 is not transferred to D3 in O.S.50/80 and the said 5th defendant namely 18th defendant herein had not joined the compromise. Whatever it may be, since the preliminary decree only orders a joint allotment of 12/60 shares to the defendants 3 to 6 that A.S. 479 OF 2001 -5- has to weigh and the property allotted as per the final decree has to be treated as the property jointly allotted to D3 to D6 in O.S.50/88. Or in other words the plaintiff who is claiming right under Kunhikannan through Sreedharan can only attempt to get their share if permissible in law with respect to B schedule in the compromise entered into in O.S.50/88. But unfortunately, the plaintiff instead of resorting to declare that the compromise decree is not binding on Sreedharan and that they are entitled to step into the shoes of Sreedharan, had filed a suit for division of the entire property. They are not entitled to do in law for the reason that they are not original sharers and they are only transferees during pendency of the proceedings. So at the most the equitable right which they are entitled to get A.S. 479 OF 2001 -6- is to claim the share of Sreedharan which he has to get under the partition. For that purpose a suit of this nature making all the members of the party as members and requesting for a redivision of the property without making a prayer for setting aside that decree cannot be entertained. Therefore the suit as filed cannot be entertained. 3. But the question is what else is the remedy available for the plaintiffs. If Damayanthi has not obtained the right of Sreedharan then the non junction of Sreedharan in the compromise looms large. But it has to be remembered that he has not chosen to challenge the compromise decree. Therefore at the most it can be said that Damayanthi holds the property allotted to D5 Sreedharan in O.S.50/88. So if the plaintiffs have got the right under A.S. 479 OF 2001 -7- Sreedharan they may be in a position to proceed against Damayanthi in a properly constituted suit with appropriate prayers including the prayer to declare that the compromise is not binding on Padmanabhan. At the same time it may be a question since Sreedharan has not challenged it what will be the binding effect of the same. So these are all matters which the plaintiffs can raise in a properly constituted suit. Therefore that liberty to the plaintiffs are preserved and the appeal is dismissed confirming the dismissal of this suit. M.N. KRISHNAN, JUDGE. ul/- A.S. 479 OF 2001 -8- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 479 OF 2001 = = = = = = = = = = = J U D G M E N T 8th July, 2010.