IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 RSA.No. 1042 of 2004() ---------------------- AS.7/1997 of SUB COURT, MUVATTUPUZHA OS.255/1989 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANTS/APPELLANTS/RESPONDENTS 2 AND 5 TO 11 ------------------------------ 1. PAREETH, S/O.AHAMMED, KAIMATTATHIL, CHERUVATTOOR, IRAMALLOOR VILLAGE. 2. AMINA, W/O.MYTHEEN, DO. DO. 3. KUNJUMON, S/O.MYTHEEN, DO. DO. 4. PATHUMMA, D/O.MYTHEEN, DO. DO. 5. NACHI D/O.MYTHEEN, DO. DO. 6. KOCHUMUHAMMED, S/O.MYTHEEN, DO. DO. 7. AYSHA, D/O.MYTHEEN, DO. DO. 8. MAKKARU, S/O.MYTHEEN, DO. DO. BY ADV. SRI.S.ANANTHASUBRAMANIAN SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM SRI.LATHEESH SEBASTIAN RESPONDENT(S)/RESPONDENTS 1 TO 7 AND 9 TO 15/APPLICANTS 1 TO 4 AND LEGAL REPRESENTATIVES OF DECEASED 5TH APPELLANT: --------------- 1. MOHAMMED, S/O.MEERAN, KAIMATTATHIL, CHERUVATTOOR, IRAMALLOOR VILLAGE. 2. HAMEED, S/O.MEERAN, DO. DO. 3. HASSAN, S/O.MEERAN, DO. DO. 4. ASSIA, D/O.MEERAN, DO. DO. 5. AMINA, W/O. MEERAN, DO. DO. RSA NO.1042/2004 2 6. MEERAN, S/O.MUHAMMED, DO. DO. 7. MEERAN, S/O.MAKKAR, DO. DO. (*)8. KATHIRU, S/O.KOYAN, KAMBATHU HOUSE, CHERUVATTOOR, IRAMALLOOR VILLAGE. (DIED) (*) 9. NACHUMMA, W/O.MYTHEEN MEERAN, KAIMATTATHIL HOUSE, CHERUVATTOOR, IRAMALLOOR VILLAGE.(DIED) 10. SAID MUHAMMED, S/O.MEERAN, DO. DO. 11. MYTHEEN KUNJU, S/O.MEERAN, DO. DO. 12. MYMOONATHU, D/O.MEERAN, DO. DO. 13. HAJIRA, D/O.MEERAN, DO. DO. 14. HAJIRA, D/O.MEERAN, DO. DO. (*)IT IS RECORDED AT THE RISK OF THE APPELLANTS THAT NO LEGAL REPRESENTATIVES ARE TO BE IMPLEADED FOR THE DECEASED 8TH AND 9TH RESPONDENTS AND THE LEGAL REPRESENTATIVES OF THE 9TH RESPONDENT ARE ALREADY IN THE PARTY ARRAY AS RESPONDENTS 10 TO 14 AS PER ORDER DATED 22/09/2005 IN STATEMENT CF 2020/05 DATED 14/03/2005. ADV. SRI.P.B.MOHANKUMAR FOR R1 TO 5 SRI.T.V.GEORGE FOR R1 TO R5 SRI.JIMMY GEORGE (THADATHIL) FOR R1 TO R5 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA NOS.1826/2004, 410/2005 AND 1397/2009 IN RSA NO.1042/2004 DISMISSED 23.9.2009. Sd/-THOMAS P.JOSEPH, JUDGE //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1042 of 2004 -------------------------------------- Dated this the 18th day of September, 2009. JUDGMENT Heard. 2. Substantial question of law framed for a decision in this Second Appeal is whether the courts below committed a grave error of law in deviating from preliminary decree for partition passed on concession made by the contesting defendants when there was no occasion whatsoever of rights if any of exparte defendants in the property sought to be partitioned. This Second Appeal arises from judgment of learned Sub Judge, Muvattupuzha in A.S.No.7 of 1997 confirming final decree passed by the learned Munsiff, Moovattupuzha in O.S.No.255 of 1989. Contention of learned counsel for appellants is that the final decree is not in conformity with the directions contained in the preliminary decree and that court while passing final decree could not have gone beyond the scope of the preliminary decree. 3. It is seen from the preliminary decree that though plaintiffs in the suit had claimed one sixth share in the plaint when PW1 was in the box he confined the claim of the plaintiffs to one nineth share. Only defendant Nos.2 and 6 contested the suit, others being exparte. It is seen from the preliminary judgment that the contesting defendant Nos.2 and 6 did not oppose the claim of plaintiffs for one nineth share and filed a statement also to that effect. RSA 1042/2004 2 Accordingly a preliminary decree was passed declaring one nineth share of the plaintiffs. Since only defendant Nos.2 and 6 contested, the share of defendants was not declared. That preliminary decree became final. Pursuant to the preliminary decree, application was filed for passing the final decree. It is seen from the final decree that while allotting one nineth share to the plaintiffs, the court also directed allotment of shares to defendant Nos.3 and 4 as well which according to the learned counsel for the appellants is illegal in so far as share of defendant Nos.3 and 4 was not declared in the preliminary decree. Learned counsel has placed reliance on the decisions in Sarbeswar Panda and others v. Bibhabasu Panda [AIR 1977 Calcutta 288] and Muthangi Ayyana v. Muthangi Jaggarao [AIR 1977 SC 292]. 4. On going through the judgment of the first appellate court it is seen that the objection above raised was adverted by the first appellate court. As per the decisions referred to above and relied on by learned counsel for appellants, court could not go beyond the preliminary decree unless the preliminary decree is modified on review or in appeal declaring the share of the co-defendants who had not contested the suit. In this case, only defendant Nos.2 and 6 contested the suit, other defendants remaining exparte and as I stated from the preliminary decree the share of the defendants has not been declared in the preliminary decree. Therefore, the trial court could not have while passing final decree gone beyond the preliminary decree and allotted shares to defendant Nos.3 and 4. To that extent the final decree of the trial court cannot be sustained and is liable to be set aside. The proper remedy of the defendants who remain exparte RSA 1042/2004 3 is to challenge the preliminary decree, seek its review or request the trial court to pass fresh preliminary decree if such a course is available to them under law. Second Appeal is therefore allowed and the final decree and judgment under challenge are set aside to the extent that it allotted shares to defendant Nos.3 and 4. THOMAS P.JOSEPH, Judge. cks