IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 AS.No. 585 of 1999(A) ------------------------------- AGAINST THE ORDER DATED 07/04/1999 IN IA 1190/94 IN OS.113/1962 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANTS IN AS/RSPONDENTS 15 TO 20 IN FINAL DECREE APPLICATION: ------------------------------------------------------------------------------------------------------------------ 1. THATHA, W/O.MADHAVAN, RESIDING AT THACHANADA, ETHANOOR AMSOM, CHITTUR TALUK. 2. SIVARAMAKRISHNAN, S/O.THATHA IN DO. DO. 3. RADHAKRISHNAN, S/O. DO. DO. 4. ANANDAKRISHNAN, S/O. DO. DO. 5. SAVITHRI, D/O. DO. DO. 6. SATHI, D/O. DO. DO. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, ADV. SRI.P.B. KRISHNAN. RESPONDENTS 1 TO 5 IN A.S./PETITIONERS 2 TO 6 IN THE FINAL DECREE APPLICATION/RESPONDENTS 6 TO 14 IN A.S./RESPONDENTS 2, 3, 5, 7 TO 9, 12 TO 14 IN FINAL DECREE APPLICATION: ----------------------------------------------------------------------------------------------------------------- 1. SAROJINI, D/O.APPU, RESIDING AT THACHAMADAYIL, ETHANOOR AMSOM, CHITTUR TALUK. 2. VALSALA, D/O. DO. DO. 3. SUBHADRA, D/O. DO. DO. 4. PANKAJAKSHI, D/O. DO. DO. AS.No. 585 of 1999(A) 5. SANTHAKUMARI, D/O. DO. DO., LATE A MINOR, NOW A MAJOR. 6. SANTHAKUMARI, D/O.CHELLA, RESIDING AT THACHAMADAYIL, ETHANOOR AMSOM, CHITTUR TALUK. 7. KOMALAM, D/O. DO. DO. 8. ARUMUGHAN, S/O. DO. DO. *9. AMMU, W/O.SWAMINATHAN, NENMENI P.O., KOLLENGODE, CHITTUR TALUK. * (DIED) 10. PONNUKUTTY, IN DO. DO. 11. THE EXECUTIVE OFFICER, KODUVAYUR VISWANATHASWAMI DEVASWOM, POST KODUVAYUR. 12. MURALI ALIAS VELAYUDHAN, SON OF LAKSHMI, RESIDING AT THACHAMADAYIL, ETHANOOR AMSOM, CHITTUR TALUK. 13. KRISHNANKUTTY, SON OF DO. RESIDING AT THACHAMADAYIL, VILAYANOOR AMSOM, CHITTUR TALUK. 14. RENUKA, D/O. DO. IN DO. DO. (RESPONDENT NO.6 IN THE FINAL DECREE, LAKSHMI, DIED AND SOME OF HER LEGAL REPRESENTATIVES ARE RESPONDENTS 12 TO 14 IN THE FINAL DECREE APPLICATION, WHO ARE RESPONDENTS 12 TO 14 IN THIS APPEAL) (RESPONDENT NO.11 IN THE FINAL DECREE HAD DIED EVEN BEFORE THE FILING OF I.A.1190 OF 1994 AND HER LEGAL REPRESENTATIVES WERE NOT IMPLEADED) *ADDL. R15 TO R19 IMPLEADED ADDL. R15: SWAMINATHAN, 'KARTHIKEYAM', NENMENI POST, KOLLENGODE, PALAKKAD DISTRICT. ADDL. R16: CHANDRAN, SON OF SWAMINATHAN IN DO. DO. AS.No. 585 of 1999(A) ADDL. R17: SUDEESH, SON OF LATE SUDEVAN, 92, G-SWAMI VIVEKANANDA ROAD, BLOCK-5, NEYVELI-3. ADDL. R18: SUJESH, S/O. DO. IN DO. DO. ADDL. R19: SHARADA, W/O.T.C. BALAKRISHNAN, EDAKATTU KALAM, THONI, CHITTALANCHERRY, PALAKKAD DISTRICT. *LEGAL REPRESENTATIVES OF THE DECEASED R9 ARE IMPLEADED AS ADDL.R15 TO R19 AS PER ORDER IN C.M.P. NO.723/2001 DATED 07/09/2009. R1 TO R5 BY ADV. SRI.K.MOHANAKANNAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 585 of 1999(A) ORDER ON C.M.P. NO.247/2002 IN A.S. NO.585/1999 DISMISSED 17/06/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 585 OF 1999 = = = = = = = = = = = = = = = Dated this the 17th day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Palakkad in I.A.1190/94 in O.S.113/62. As per the said order the learned Subordinate Judge has passed a final decree. It is against that decision the appeal has been filed by respondents 15 to 20 in the said I.A. I am at a lost to understand the manner in which the parties have dealt with this case. 2. A suit for partition was filed as early as in the year 1962 and a preliminary decree was passed whereby the Court declared 1/7th shares to the plaintiff and 1/7 shares to the third defendant. So necessarily the balance is 5/7 shares and unfortunately the Court did not A.S. 585 OF 1999 -2- answer the point that who are all entitled to the remaining 5/7 shares. So the preliminary decree lacks declaration of shares with respect to the entire property. Further an application was filed for final decree with respect to the same items and the Court passed a final decree allotting the shares of the plaintiff as well as the 3rd defendant. Now the balance is the subject matter of our petition and in this petition also the entire items are not sought to be partitioned. It is true that in order to avoid multiplicity of suits Courts have taken a view that supplemental final decrees can be passed but they are all cases where the declaration of share is made or on account of the death of one of the parties there is change of shares. But in this case this Court is at a loss to understand at this stage who are entitled to 5/7 A.S. 585 OF 1999 -3- shares. I am informed that some of the parties have died also. But if there is a consensus among all the other sharers entitled to partition in the property certainly share can be worked out and a litigation can be averted and a final decree can be passed. I make it very clear that the junction of all persons entitled to the shares must be on the party array and there must be consensus among them regarding their shares for the reason that in a final decree proceedings the Court cannot adjudicate the quantum of share with respect to a party. If such a consensus is available the Court may proceed with processing the final decree application. There is no point in just carving out one item and passing a final decree for the reason that it will detrimentally affect the shares of the other party when they move the A.S. 585 OF 1999 -4- Court for their share. Ext.A1 at the most can be taken as a guideline with respect to the parties therein and not otherwise. I am informed that large number of sharers had sold their properties and they are outstanding in the possession of strangers. If there is an oral partition as alleged, then the question of passing a final decree does not arise at all for consideration as there is no undivided share left out. If the question of oral partition is raised in the final decree proceedings, then the matter has to be put an end to and the parties have to file a separate suit for redressal of their grievances. Therefore the order under challenge is set aside and the matter is remitted back for fresh consideration in the light of the discussions made in the previous paragraphs. Parties are directed to appear A.S. 585 OF 1999 -5- before the Court below on 18.8.2010. The appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- A.S. 585 OF 1999 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 585 OF 1999 = = = = = = = = = = = J U D G M E N T 17th June, 2010.