IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 RSA.No. 432 of 2008() --------------------- AS.76/2006 of 1st ADDL.DISTRICT COURT, THRISSUR OS.642/1992 of II ADDL.SUB COURT,THRISSUR .................... APPELLANTS/APPELLANTS/DEFENDANT Nos.3, 5, 8, 9, 10, 22, 23,24, 25 & LRs. OF DEFENDANT No.4: ----------------------------------------- 1. RAMACHANDRAN,AGED 66, (died) S/O.PAYI, PURANDEKATTIL, NELLIKKUNNUKARA DESOM, OLLUKKARA VILLAGE,THRISSUR TALUK, THRISSUR DIST. 2. VIJAYAKUMARI, AGED 57, D/O.PAYI, AND W/O.PUTHUR BALAN, PURANDEKKATTIL, -DO- -DO- 3. USHA, AGED 41, D/O.PAYI, AND W/O.MOOLEKKATTIL JAYAN, PURANDEKATTIL, PULLAZHI DESOM, KODANNUR VILLAGE, THRISSUR TALUK. 4. OMANA, AGED 40 YRS,W/O.VENU, PURANDEKATTIL, CHETTUPUZHA DESOM, THRISSUR TALUK. 5. SUNIL, S/O.VENU, PURANDEKKATTIL, -DO- -DO- -DO- . 6. THANKAMANI, W/O.LATE BHASKARAN, PURANDEKKATTIL VELIYANNUR DESOM, THRISSUR TALUK. 7. REGHU @ REGHUNATHAN, AGED 39, S/O.LATE BHASKARAN, PURANDEKKATTIL, -DO- -DO- . 8. SUKU, AGED 30, S/O.LATE BHASKARAN, PURANDEKATTIL, -DO- -DO- . 9. SUDHA, AGED 34, D/O.LATE BHASKARAN, PURANDEKATTIL, -DO- -DO- . 10. KARTHYAYINI, AGED 57, W/O.LATE RAMAKRISHNAN, PURANDEKKATTIL, NELLIKKUNNU DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK -DO- -DO- . 11. BABU, AGED 36, MARASARI, S/O.LATE RAMAKRISHNAN, PURAMEKATTIL, -DO- -DO- . 12. BAIJU, AGED 33, MARASSARI, S/O.LATE RAMAKRISHNAN, PURANDEKKATTIL -DO- -DO- . 13. BABY, AGED 35, D/O.LATE RAMAKRISHNAN, PURANDEKATTIL, -DO- -DO- . *14. THUKAMMA, AGED 60 W/o. RAMACHANDRAN PURANDEKATTIL HOUSE NALLIKKUNNUKARA DESOM, OLLUKKARA VILLAGE THRISSUR DISTRICT *15. P R AMBILY, D/o. RAMACHANDRAN AGED 25, - DO - *16. P R ALEENA, D/o. RAMACHANDRAN AGED 23, - DO - (* - ADDITIONAL APPELLANTS A14 TO A16 IMPLEADED AS LRs. OF DECEASED APPELLANT No.1 AS PER ORDER DATED 30-11-2009 IN IA 2781 OF 2009) BY ADV. DR.V.N.SANKARJEE RESPONDENTS/ RESPONDENT/PLAINTIFF Nos.1 TO 6, DEFENDANTS 1, 11 TO 21, 6, 7: ------------------------------------------------ 1. JANAKI, AGED 76, W/O.PARAMESWARAN, PURANDEKATTIL,VELIYANNUR DESOM, THRISSUR VILLAGE, THRISSUR TALUK. 2. SUBRAMANIAN, AGED 56, S/O.PARAMESWARAN, PURANDEKATTIL -DO- -DO-. 3. RAJAN, GED 51, MARASSARI, S/O.PARAMESWARAN, PURANDEKKATTIL, KOTTAPPADY DESOM, THRISSUR VILLAGE. -DO- -DO- 4. VISWAMBARAN, AGED 55, S/O.PARAMESWARAN, PURANDEKKATTIL, NEAR SILK, ATHANI DESOM, -DO- -DO- 5. VISALAKSHI, AGED 52, D/O.PARAMESWARAN, PURANDEKATTIL, KOTTAPPADY DESOM, THRISSUR VILLAGE, TALUK. 6. REJALEKSHMI, AGED 49, D/O.PARAMESWARAN, PURANDEKKATTIL, KUTTUMUKKU DESOM, VALVATTOM VILLAGE,THRISSUR TALUK. 7. KESAVAN, AGED 76, S/O.PARAMESWARAN, PURANDEKKATTIL, -DO- -DO- 8. MALATHI, AGED 71, W/O.LATE KUTTAN, PURANDEKKATTIL, PULLAZHI VILLAGE, AND DESOM, THRISSUR TALUK. 9. MOHANAN, AGED 54, S/O.LATE KUTTAN, PURANDEKKATTIL, -DO- -DO- 10. JANARDHANAN, AGED 46, S/O.KUTTAN, PURANDEKKATTIL, -DO- -DO- 11. JAYAN, AGED 43, S/O.LATE KUTTAN, PURANDEKKATTIL, -DO- -DO- 12. SURENDRAN, AGED 40, S/O.LATE KUTTAN, PURANDEKATTIL, -DO- -DO- . 13. VALSALA, AGED 51, D/O.LATE KUTTAN, PURANDEKATTIL, -DO- -DO- . 14. SULOCHANA, AGED 71. W/O.UNNI, PURANDEKKATTIL, OLLUKKARA VILLAGE, TALUK. 15. HARIDAS, AGED 51, S/O.UNNI, PURANDEKKATTIL, -DO- -DO- . 16. RETHI, AGED 48, D/O.UNNI, PURANDEKKATTIL -DO- -DO- . 17. SATHI, AGED 46, D/O.UNNI, PURANDEKKATTIL, -DO- -DO- . 18. JYOTHI, AGED 44, D/O.UNNI, PURANDEKKATTIL, -DO- -DO- . 19. GOPI, AGED 55, S/O.PAYI, PURANDEKKATTIL, PADOOKKAD DESOM, KOLAZHI VILLAGE, THRISSUR TALUK. 20. BABU, AGED 53, SON OF PAYI, PURANDEKKATTIL, UMANAGAR DESOM - DO- -DO- . ADV. SRI.P.SANTHOSH (PODUVAL) FOR R1,2,4-18 SMT.R.RAJITHA FOR R1,2,4 TO 18 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.432 of 2008B --------------------------------------- Dated this 30th day of November, 2009 JUDGMENT This appeal is at the instance of defendant Nos.3, 5, 8 to 10 and 22 to 25 and the legal representatives of defendant No.4. The appeal arises from a suit for partition. Trial court passed a preliminary decree for partition. That was challenged by these appellants and defendant No.4 in the Court of learned first Additional District Judge, Thrissur in A.S.No.76 of 2006. In the meantime as per order on I.A.No.631 of 2006 learned Sub Judge passed final decree in the suit. First appellate court taking note of that development held that the appeal against the preliminary decree has become infractuous and accordingly dismissed the same. That judgment and decree are under challenge in this second appeal at the instance of the parties first above mentioned. Learned counsel for appellant submit that the dismissal of the appeal by the first appellate court for the reason that in the meantime final decree has been passed is not legally correct and placed reliance on the decision of this court in D.RaviKumar Vs. Elizabeth Mathew (1994(2) KLJ 768). 2. It is seen from I.A.Nos.2780 of 2009 and 2781 of 2009 and it is not disputed before me by counsel on both sides that respondent No.3 died on 25-12-2006 even before the first appellate court disposed of the appeal on 07-01-2008. While disposing of I.A.No.2780 of 2009 and 2781 of 2009 I stated that consequent to the death of respondent No.3 while the appeal was pending in the first appellate court, impleadment of the legal representatives cannot be ordered in this second appeal. The reason is that the first appeal to the extent it concerned respondent No.3 stands abated. The Supreme Court in Shahazada Bi Vs. Halimabi (AIR 2004 SC 3942) has stated that if the interest of co-defendants are separate, as in case of co-owners (as in the present case) the suit will abate only as regards the interest of the deceased defendant. Hence the judgment and decree of the first appellate court as against others cannot be said to be a nullity. At the same time to the extent it concerned respondent No.3, judgment and decree of the first appellate court are a nullity in that the judgment and decree were passed against a dead person. The proper course therefore is to allow this second appeal, set aside the judgment and decree of the first appellate court and remit the appeal to that Court with opportunity for appellants to implead legal representatives of respondent No.3 if they are so advised. The question whether in view of the passing of final decree the appeal against preliminary decree has become infractuous will be decided by the first appellate court at the appropriate time taking into account the position of law in that regard. Resultantly the second appeal is allowed. Judgment and decree under challenge are set aside and the case is remitted to the court of learned First Additional District Judge, Thrissur for fresh disposal. It will be open to the party concerned to seek impleadment of legal representatives of respondent No.3 and if any such application is preferred learned Additional District Judge shall dispose of the same as provided under law and thereafter dispose of the appeal on merit. If any application to condone delay in filing the appeal in the first appellate court is pending, I make it clear that the appellate court has to dispose of that application before admitting the appeal for hearing. Execution of the final decree will stand adjourned for a period of one month from today or till the first appellate court passes appropriate orders regarding execution of the final decree, whichever is earlier. Parties shall appear in the first appellate court on 23-12-2009. First appellate court shall expedite the disposal of the applications if any pending as well as the appeal. No cost. THOMAS P JOSEPH, JUDGE Sbna/