IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 WP(C).No. 18315 of 2010(O) -------------------------- OS.99/1976 of SUB COURT, NEDUMANGAD .................... PETITIONER: --------------- VALSALAKUMARI, D/O. BHARGAVI, KRISHNA BHAVAN, CHANTHAVILA VEEDU, KARIPOOR VILLAGE, NEDUMANGAD TALUK, REPRESENTED BY THE NEXT FRIEND SREEDEVI, KIZHAKKETHIL VEEDU, CHANTHAVILA, VADAKKUMKARA, NEDUMANAGD. BY ADV. SRI.LIJU.V.STEPHEN RESPONDENTS: --------------- 1. VENUGOPALA SODAR, S/O. PAPPUKUTTY, T.C. 30/939 (OLD NO. T.C.39/798) PETTAH VILLAGE, THIRUVANANTHAPURAM. 2. INDIRA DEVI, D/O. BHANUMATHY, KAVUVILAKATHU VEEDU, MUKKOLA, NEAR MOSQUE, KACHANI, NETTAYAM. 3. VASANTHA KUMARI, D/O. BHANUMATHY, INDIRA BHAVAN, AYYAPPANKUZHY, PANACKODU, PARUTHYKUZHI.P.O., NEDUMANGAD. 4. VIJAYAMBIKA, D/O. BHANUMATHY, INDIRA BHAVAN, AYYAPPANKUZHY, PANACKODU,PARUTHYKUZHI.P.O., NEDUMANGAD. 5. LEELA BAI.M., ANANDESWARAM PUTHEN VEEDU, ELIYAVOOR, PAUTHIKUZHI.P.O.,UZHAMALACKAL VILLAGE. 6. K.SASANKAMANIDHARAN, S/O. KUNJUSANKARAN ANANDESWARAM PUTHEN VEEDU, ELIYAVOOR, PAUTHIKUZHI.P.O., UZHAMALACKAL VILLAGE. 7. LALITHAMMA, ANANDESWARAM PUTHEN VEEDU, ELIYAVOOR, PAUTHIKUZHI.P.O., UZHAMALACKAL VILLAGE. 8. M.SARALA, ANANDESWARAM PUTHEN VEEDU, ELIYAVOOR, PAUTHIKUZHI.P.O., UZHAMALACKAL VILLAGE. 9. SULOCHANA, D/O. BHARGAVI, KUZHIYATHUVILA VEEDU, KAPPIL DESAM, EDAVA VILLAGE, VARKKALA. W.P.C.No.18315 OF 2010 10. SARALA, D/O. BHARGAVI, KUZHIYATHUVILA VEEDU, KAPPIL DESAM, EDAVA VILLAGE, VARKKALA. 11. SULEKHA @ CHANDRIKA, D/O. BHARGAVI, KUZHIYATHUVILA VEEDU, KAPPIL DESAM, EDAVA VILLAGE, VARKKALA. 12. SANTHAKUMARI, D/O. BHARGAVI, KUZHIYATHUVILA VEEDU, KAPPIL DESAM, EDAVA VILLAGE, VARKKALA. 13. ROSECHANDRA BABU, S/O. GANGADHARAN, KUZHIYATHUVILA VEEDU, KAPPIL DESAM, EDAVA VILLAGE, VARKKALA. 14. SASIKALA, D/O. BHARGAVI, KUZHIYATHUVILA VEEDU, KAPPIL DESAM, EDAVA VILLAGE, VARKKALA. 15. SUJITHA KUMARI, D/O. BHARGAVI, KUZHIYATHUVILA VEEDU, KAPPIL DESAM, EDAVA VILLAGE, VARKKALA. 16. RATHEESH BABU, S/O. GANGADHARAN, KUZHIYATHUVILA VEEDU, KAPPIL DESAM, EDAVA VILLAGE, VARKKALA. 17. M.ARAVIND, MANI MANDIRAM,NEAR MISSION BUNGLOW, ATTINGAL. 18. AMBIKESAN.M., MANI MANDIRAM,NEAR MISSION BUNGLOW, ATTINGAL. 19. VIMALAMBIKA.D., MANI MANDIRAM,NEAR MISSION BUNGLOW, ATTINGAL. 20. M.SWATHEESHCHANDRAN (LATE), MANI MANDIRAM,NEAR MISSION BUNGLOW, ATTINGAL. 21. LALI PUSHPANGATHAN, MANI MANDIRAM,NEAR MISSION BUNGLOW, ATTINGAL. 22. LAILA PRASAD, MANI MANDIRAM,NEAR MISSION BUNGLOW, ATTINGAL. 23. RADHAKRISHNAN, KOVILVILAKAM VEEDU, KAVARADI ROAD, PETTAH, THIRUVANANTHAPURAM. 24. SARATHCHANDRA BABU, S/O. JAGADAMMA, BUNGLOW VILAKATHU VEEDU, WALT'S LANE, NANTHANCODE, THIRUVANANTHAPURAM. 25. GIREESHCHANDRAN, S/O. JAGATHAMMA, BUNGLOW VILAKATHU VEEDU, WALT'S LANE, NANTHANCODE, THIRUVANANTHAPURAM. W.P.C.No.18315 OF 2010 26. GIRIJA KUMAR, D/O. JAGATHAMMA, BUNGLOW VILAKATHU VEEDU, WALT'S LANE, NANTHANCODE, THIRUVANANTHAPURAM. 27. GEETHA, D/O. JAGATHAMMA, BUNGLOW VILAKATHU VEEDU, WALT'S LANE, NANTHANCODE, THIRUVANANTHAPURAM. 28. ABHILASH, S/O. RAVEENDRA BABU, VIJAYA COTTAGE, HOUSE NO.VIII/20 JANAKA ROAD, CHEMPAZHANTHY, THIRUVANANTHAPURAM. 29. ANAND @ ANEESH, S/O. RAVEENDRA BABU, VIJAYA COTTAGE, HOUSE NO.VIII/20 JANAKA ROAD, CHEMPAZHANTHY, THIRUVANANTHAPURAM. 30. ANNESHA, D/O. RAVEENDRA BABU, VIJAYA COTTAGE, HOUSE NO.VIII/20 JANAKA ROAD, CHEMPAZHANTHY, THIRUVANANTHAPURAM. 31. REGHUNATHA BABU, S/O. KRISHNAN, KRISHNA BHAVAN, KALLINGAL CHANTHAVILA,KARIPOOR VILLAGE, NEDUMANGAD. 32. RAVEENDRA BABU, S/O. KRISHNAN, VIJAYA COTTAGE, HOUSE NO. VIII/20, JANAKA ROAD, CHEMPAZHANTHY, THIRUVANANTHAPURAM. 33. SHYLAJA KUMARI, D/O. BHARGAVI, KRISHNA BHAVAN, KALLINGAL CHANTHAVILA,KARIPOOR VILLAGE, NEDUMANGAD. 34. SAMBASIVAN, S/O. KRISHNAN, KRISHNA BHAVAN, KALLINGAL CHANTHAVILA,KARIPOOR VILLAGE, NEDUMANGAD. 35. USHAKUMARI, D/O. BHARGAVI, KRISHNA BHAVAN, KALLINGAL CHANTHAVILA,KARIPOOR VILLAGE, NEDUMANGAD. 36. MOHANACHANDRAN, ANANDESWARATHU VEEDU,AYYAPPANKUZHY,UZHAMALACKAL VILLAGE. 37. LALITHAMBIKA, ANANDESWARATHU VEEDU,AYYAPPANKUZHY,UZHAMALACKAL VILLAGE. 38. K.R.JAYACHANDRAN, KRISHNA VILASAM, KALLINGAL, CHANTHAVILA, KARIPOOR VILLAGE, NEDUMANGAD. 39. CHANDRA KUMARI @ AMBI, KAVIL PUTHEN VEEDU, AMBALATHARA, POONTHURA, THIRUVANANTHAPURAM NOW RESIDING AT PRAKASH MANDIRAM, PARUTHYKUZHY, NEDUMANGAD. W.P.C.No.18315 OF 2010 40. JAYAKUMARI @ MAYA, PRAKASH MANDIRAM, PARUTHYKUZHY, NEDUMANGAD. 41. GEETHA, PRAKASH MANDIRAM, PARUTHYKUZHY, NEDUMANGAD. 42. RADHIKA, EDAVILAKATHU VEEDU, NANNIYODU, PACHA, PALODE VILLAGE, NOW RESIDING AT PRAKASH MANDIRAM, PARUTHYKUZHY, NEDUMANGAD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.18315 of 2010 --------------------------------------- Dated this 24th day of June, 2010 JUDGMENT Judgment debtor No.7 in E.P.No.26 of 2004 in O.S.No.99 of 1976 of the court of learned Sub Judge, Nedumangad is the petitioner in this writ petition claiming to be an insane person, she is represented by her next friend in this proceeding. Her grievance is that a decree for redemption of mortgage was obtained in the suit against her and others at a time when she was insane but without being represented by a guardian and hence the decree against her is a nullity which the executing court was bound to take into account. The decree therefore is not executable. Petitioner, represented by her next friend filed E.A.No.22 of 2010 in the executing court for a declaration that the decree against her is a nullity for the said reason and that she is not liable to be evicted as per that decree. The executing court as per Ext.P5, order dismissed the application stating that petitioner has not stated her status in the suit or the execution proceedings though from the petition it would appear that she is judgment debtor No.7, execution proceedings are pending since 2007 onwards and until E.A No.22 of 2010 was filed, there was no W.P.C.No.18315 of 2010 : 2 : objection from any quarters as to the alleged mental status of petitioner, the next friend has not stated that she is interested in the matter or related to the petitioner and since executing court cannot go behind the decree to find illegality of the same. It is contended by learned counsel that finding entered by executing court is erroneous. According to the learned counsel executing court was bound to conduct an enquiry regarding the mental condition of petitioner stated in E.A.No.22 of 2010 as provided under Order 32 Rule 15 of the Code of Civil Procedure (for short, “the Code”). According to the learned counsel, reasons stated by executing court for dismissal of the application are wholly irrelevant. 2. It is necessary to refer to the facts of the case. There was a mortgage in favour of deceased defendant No.1, father of petitioner and other contesting judgment debtors. Respondent No.1/decree holder filed the suit for redemption of mortgage impleading deceased defendant No.1, father of petitioner and others as a party. During the pendancy of that suit, defendant No.1 expired and thereon his legal representatives including petitioner were impleaded. The preliminary decree passed in the case was challenged in second appeal in this court in the year 1984 and in 1992, a modified preliminary decree was passed. That was followed by a final decree which also has become final and W.P.C.No.18315 of 2010 : 3 : which respondent No.1 sought to execute by filing E.P.No.26 of 2004. It is while so, that petitioner filed E.A.No.22 of 2010 stating that she is insane but was not represented by guardian duly appointed in the case and hence the preliminary and final decrees are a nullity. Learned counsel states that though at the time petitioner was impleaded as one of the legal representatives of deceased defendant No.1 she was in perfect mental condition and that mental condition continued up to 1987 before which time the preliminary decree was challenged in A.S.No.229 of 1980 and S.A.No.250 of 1984, she lost her mental balance in the year 1987 and since then, is mentally insane. It is without noticing that fact that in the year 1992 this court disposed of S.A.No.250 of 1984 modifying the preliminary decree and thereafter a final decree was passed. 3. It is true that executing court has not conducted an enquiry under Oder 32 Rule 15 of the Code to ascertain the mental condition of petitioner pleaded by her. But, I am at the question whether accepting the entire allegations made by petitioner she, at this stage could challenge preliminary and final decrees and execution of the final decree. In my view, on the facts pleaded by petitioner it is not possible. My reasoning is thus: It is admitted that mortgage of the suit property was in favour of deceased defendant No.1, father of petitioner and other judgment W.P.C.No.18315 of 2010 : 4 : debtors. It is also not disputed that defendant No.1 appeared in the case, contested it and he died only pending the suit. It is then that petitioner and other legal heirs were impleaded in the suit. Even on the showing of petitioner she appeared in the suit and was a party to the appeal and second appeal and she allegedly became insane only during the course of second appeal sometime in the year 1987. Admittedly, nobody had pointed out the alleged insanity of petitioner until filing E.A.No.22 of 2010. It is not disputed that petitioner along with other contesting judgment debtors being legal heirs of deceased defendant No.1 represented the estate of the deceased which devolved on them. It is settled position of law that when the estate devolves on the legal heirs/legal representatives consequent to the death of the predecessor-in-interest the legal heirs/legal representatives take the estate as joint tenants with unity of interest, title and possession of the estate in them. The estate that devolved on the legal heirs/legal representatives is one in interest, title and possession with each of the legal heirs/legal representatives having right over every inch of the estate as co-owners. That means, every legal heir/legal representative represented every inch of the joint estate. This position is declared by Supreme Court in the decisions in H.C Pandey Vs. G.C Paul (AIR 1989 SC 1470) and Harish Tandon Vs. Addl. Dist. Magistrate, W.P.C.No.18315 of 2010 : 5 : Allahabad, O.P & Ors. (AIR 1995 SC 676). That means, even if it is assumed that petitioner acquired mental disability in the year 1987 and was not thereafter represented by guardian, the worst that can be said is that she was not a party to the proceedings after 1987. That does not in any way affect the decree or subsequent proceedings since it bound the estate of deceased defendant No.1 and which was represented by the other legal heirs/legal representatives of deceased defendant No.1. The principle of substantial representation would apply in such a situation (See decisions in N.K Muhd. Sulaiman Sahib Vs. C.Mohd.Ismail Saheb & Ors.(AIR 1966 SC 792), Kochi Palli Hameed Vs. Sumithra & Ors. (1986 KLT 924), Hameed Vs. Sumithra & Ors. (1987 (1) KLT 308) and Mohanambal Vs. Veeramani (1999(2) KLT 206). An exception to that rule is when there is fraud and collusion between other legal heirs/legal representatives and plaintiff as the case may be to defeat the interest of non party legal heir/legal representative. There is no case for petitioner that other legal heirs of deceased defendant No.1 had acted against her interest of petitioner or, colluded with respondent No.1 in obtaining the decree in respect of estate of the deceased defendant No.1. Hence even if the allegations made by petitioner in E.A.No.22 of 2010 are accepted for the face value, that does not in any way affect validity of the decrees obtained by W.P.C.No.18315 of 2010 : 6 : respondent No.1 or its executability. As such, there is no merit in E.A.No.22 of 2010. In the circumstances, though not for the reasons stated by learned Sub Judge, I do not find reason to interfere with the ultimate order passed by learned Sub Judge dismissing E.A.NO.22 of 2010. Resultantly this writ petition fails. It is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-