IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 RSA.NO. 850 OF 2003() --------------------- AS.20/1988 OF SUB COURT, CHERTHALA OS.927/1983 OF PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANT – RESPONDENT - PLAINTIFF: ------------------------------------ RAJU, RESIDING AT PUTTUPARAMBIL FROM MURINGANATTU VEETIL PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. BY ADV. SRI.R.HARIKRISHNAN RESPONDENT(S) – APPELLANTS - DEFENDANTS: ----------------------------------------- 1. KALYANI BHARGAVI, RESIDING AT CHIRAYIL VEETIL, CHARUVARANAM MURI, THANNERMUKKOM VADAKKU VILLAGE (DIED) 2. GOVINDAN ACHARY VELLO ACHARY, MURINGANATTU VEETIL, PERUNNERMANGALAM MURI, MARARIKULAM NOTH VILLAGE (DIED) 3. GOVINDAN ACHARY SREEDHARAN ACHARY, RESIDING AT MURINGANATTU VEETIL, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE (DIED) 4. GOVINDAN ACHARY PRABHAKARAN ACHARY, MURINIGANATTU VEETIL, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 5. RAJAN MANGATTAYIL, VALLAKATHUKARA, VAIKOM TALUK. 6. KAMALAKSHY AMMINI, VALLAKATHUKARA, VAIKOM TALUK. 7. MADANAN, VALLAKATHUKARA, VAIKOM TALUK. 8. KAMALAKSWHY SUDHA, VALLAKATHUKARA, VAIKOM TALUK. 9. KRISHNAN DASAN, KUTTIYATTU, PERUMTHURUTH MURI, THANNEERMUKKOM SOUTH VILLAGE. 10. KRISHNA DAMODARAN, KUTTIYATTU, PERUMTHURUTH MURI, THANNEERMUKKOM SOUTH VILLAGE (DIED) 11. JANAKY PADMINI, KUNNATHUCHIRAYIL, VAIKOM, KIZHAKKENADA, VAIKOM. 12. JANAKY AMMA BHANUMATHY AMMA, PATTUPARAMBIL, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 13. JANAKY AMMA SATHI, PATTUPARAMBIL, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 14. KUMARAN ACHARY SUMAN, PATTUPARAMBIL, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 15. KUMARAN ACHARY SUMITHRAN, PATTUPARAMBIL, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 16. KUMARAN ACHARY SASI, PATTUPARAMBIL, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 17. JANAKY AMMA JAYAMMA, PATTUPARAMBIL, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 18. KUMARAN ACHARY RADHAKRISHNAN, PATTUPARAMBIL, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 19. JANAKY AMMA, PATTUPARAMBIL, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 20. KARUNAKARA KURUP, SREEKRISHNA SADANAM FROM NAKKRANITIL OF PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 21. SUMATHY, ANGATHUPARAMBIL, VILAMANGALAM, THURAVOOR NORTH. 22. AMMU, RESIDING AT SANGAMAM, PERUNTHURUTH MURI, KANJIKUZHI VILLAGE. 23. VALSALA, SANGAMAM, PERUNTHURUTH MURI, KANJIKUZHI VILLAGE. 24. C.RAJAMMA, SUB ENGINEER (CIVIL CIRCLE), EDAMALAYAR PROJECT K.S.E.B., KOTHAMANGALAM. 25. SARASU, RESIDING AT MURINGANATTU, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 26. RAVI, MURINGANATTU, PERUNNERMANGALAM MURI, MARARIKULAM NORTH VILLAGE. 27. SANTHOSH, S/O. DAMODARAN, RESIDING AT KANNIKATTU, PERUMTHURUTH MURI, THANNEERMUKKOM SOUTH VILLAGE. 28. SURESH, S/O. DAMODARAN, RESIDING AT KANNIKATTU, PERUMTHURUTH MURI, THANNERMUKKOM SOUTH VILLAGE. 29. RAJESH, S/O. DAMODARAN, RESIDING AT KANNIKATTU, PERUMTHURUTH MURI, THANNEERMUKKOM SOUTH VILLAGE. 30. AMBUJAKSHY, M/O. DAMODARAN, RESIDING AT KANNIKATTU, PERUMTHURUTH MURI, THANNEERMUKKOM SOUTH VILLAGE. RESPONDENTS NOS.21 TO 26 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.2 AS PER ORDER DATED 28.10.2009 VIDE MEMO C.F.6444/2009 DATED 14.10.2009. RESPONDENT NOS.27 TO 30 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.10 AS PER ORDER DATED 28.10.2004 VIDE MEMO C.F.6444/2009 OF 14.10.2009. ADDITIONAL RESPONDENTS IMPLEADED: ---------------------------- 31. T. PURUSHOTHAMAN, S/O.KLYANI BHARGAVI RESIDING AT CHIRAYIL VEETTIL, CHARUVARANAM MURI, THANNEERMUKKOM VADAKKU VILLAGE, ALAPPUZHA. 32. T. CHANDRAN, DO. DO. DO. 33. T. GANGADHARAN, DO. DO. DO. 34. T. BABU, DO. DO. DO. 35. C.B. LALITHA, D/O. KALYANI BHARGAVI, DO. DO. 36. C.B. USHA, DO. DO. DO. ADDITIONAL RESPONDENTS 31 TO 36 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED R1 AS PER THE SEPARATE ORDER DATED 17.3.2008 IN I.A. NO.582 OF 2005. 37. DEVAKI, AGED 65, W/O. GOVINDAN ACHARY SREEDHARAN ACHARY, MURINGANATTU HOUSE, S.L. PURAM, CHERTHALA. 38. SANTHOSH, AGED 40, S/O. GOVINDAN ACHARY SREEDHARAN ACHARY, DO. DO. 39. LATHA, AGED 42, D/O. DO. DO. DO. 40. SURESH, AGED 33, S/O. DO. DO. DO. 41. SATHIAPPAN, AGED 36, DO. DO. DO. 42. AJITHA, AGED 38, D/O. DO. DO. DO. 43. SUJATHA, AGED 30, DO. DO. DO. DO. ADDITIONAL RESPONDENTS 37 TO 43 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.3 AS PER SEPARATE ORDER DATED 17.3.2008 IN I.A. 582 OF 2005. ADV. SRI.G.GOPAKUMAR (CHERTHALA) FOR R1 SRI.RASHEED C.NOORANAD FOR R1 & ADDL.R33 SRI.G.GOPAKUMAR (CHERTHALA) FOR ADDL.R33 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 850 of 2003 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of November, 2009 J U D G M E N T --------------------- The Second Appeal is in challenge of judgment of learned Sub Judge, Cherthala in A.S. No.20 of 1988 reversing judgment and decree of learned Munsiff, Cherthala in O.S.No.927 of 1983. That was a suit filed by the appellant-plaintiff to set aside the final decree in O.S. No.362 of 1969 for partition and realisation of damages. Parties are referred to as plaintiff and defendants for convenience. 2. According to the plaintiff, suit property belonged to the late Kumaran Achari, father of plaintiff and defendant Nos.12 to 18. Defendant No.19 is the mother of plaintiff and defendant Nos.12 to 18. Defendant Nos.5 to 8 are children of the late Kamalakshy. Defendant Nos.9 to 11 are children of the late Janaky Amma. Defendant Nos.1 to 4 are children of Govindan Achary. According to the plaintiff, his father the late Kumaran Achary, Kamalakshy, Janaky Amma and Defendant Nos.1 to 4 had 1/7 shares each in the suit property and a preliminary decree for partition was passed in O.S. No.362 of 1969. Kamalakshy filed application to pass final decree and when the final decree application was pending Kumaran Achary died. Thereon plaintiff and defendant Nos.12 to 19 were impleaded as his legal R.S.A. NO.850 of 2003 -: 2 :- representatives. According to the plaintiff none of them got notice from the final decree proceeding which plaintiff alleged, was due to the fraud and collusion practiced by the contesting defendants. Therefore the plaintiff wanted the final decree in O.S. No.362 of 1969 to be set aside on the ground of fraud and to pass fresh preliminary decree for partition. Defendant No.1 contended that after the death of Kumaran Achary his legal representatives were impleaded as per order dated 11.12.1981 as additional defendant Nos.9 to 17 in the final decree proceeding. It is also contended that additional defendant No.11 in that case, mother of the plaintiff had contested the final decree proceeding and when the Advocate Commissioner appointed in that case inspected the property all the parties except defendant No.14 were present and had notice of the proceeding in the final decree. It is also contended that final decree in O.S. No.362 of 1969 was challenged in appeal which was confirmed (Ext.B3 is the judgment in appeal – A.S. No.189 of 1977). Learned Munsiff noticed from Ext.A1, copy of B diary in O.S. No.362 of 1969 that there was no service of notice on the legal representatives of deceased Kumaran Achary on their impleadment as additional defendant Nos.9 to 17 in O.S. No.362 of 1969 and hence the decree in that case is not binding on the plaintiff and other legal representatives of the late Kumaran R.S.A. NO.850 of 2003 -: 3 :- Achary. Accordingly the final decree in O.S. No.362 of 1969 was set aside and a fresh preliminary decree for partition was passed. That judgment and decree were challenged by defendant No.1 in appeal (A.S. No.20 of 1988). First appellate court found that the mere fact that there was no service of notice on the legal representatives of deceased Kumaran Achary does not in any affect the validity of the final decree passed in O.S. No.362 of 1969, allegation of fraud and collusion are not established and hence the plaintiff is not entitled to the reliefs prayed for. In holding so reliance was placed on the decision of this Court in Bhargavi v. Kuttikrishnan (1966 KLT 194). Judgment and decree of the trial court were reversed and suit was dismissed. Hence this Second Appeal challenging the finding of the first appellate court. The substantial question of law raised in the memorandum of Second Appeal is whether in the absence of notice to the legal representatives of deceased Kumaran Achary (in the final decree proceeding in O.S. No.362 of 1969) first appellate court was justified in reversing the judgment and decree of the trial court which set aside the final decree in O.S. No.362 of 1969. 3. Courts below observed from Ext.A1, copy of B diary in O.S. No.362 of 1969 that consequent to the death of Kumaran Achary while application for final decree application was pending, plaintiff in O.S. R.S.A. NO.850 of 2003 -: 4 :- No.362 of 1969 filed I.A. No.3278 of 1981 on 26.11.1981 to implead plaintiff and defendant Nos.12 to 19 (in the case on hand) as additional respondent Nos.9 to 17 in the final decree application. That application was allowed on 11.12.1981. But Ext.A1 does not show that any notice was issued or served on the plaintiff or defendant Nos.12 to 19. But the first appellate court observed that the mere fact that no notice of the final decree application was served on the legal representatives of Kumaran Achary is no ground to set aside the final decree passed with jurisdiction in a separate suit. It is contended by learned counsel by way of substantial question of law raised in the memorandum of appeal that in the absence of service of notice on the legal representatives of deceased Kumaran Achary the final decree passed in O.S. No.36 of 1969 cannot be sustained. 4. In Bhargavi Amma’s case referred to by the learned Sub Judge the distinction between exercise of jurisdiction and existence of jurisdiction was considered. There is no case that court which passed the final decree in O.S. No.362 of 1969 lacked jurisdiction to pass such a decree. Challenge is only to the exercise of jurisdiction and not on existence of jurisdiction. It is also to be borne in mind that it is not the service of notice that conferred jurisdiction for the court to decide the issue. Assuming that the final decree is in O.S. No.362 of 1969 is R.S.A. NO.850 of 2003 -: 5 :- passed without notice or summons as the case may be, it is only that the decree is voidable at the instance of the party on whom such notice or summons has not been served. That may be a ground for the parties concerned either to challenge the decree in appeal to the extent it is permissible or to seek the decree to be set aside on the ground of want of notice. That there was no notice served on the plaintiff or defendant Nos.12 to 19 is not a ground to institute a separate suit to set aside the decree on the ground of want of notice. There is also no evidence of fraud so far as the contesting defendants are concerned in that failure to issue notice by the court cannot be attributed to any fraud or collusion between contesting parties in O.S. No.362 of 1969. Therefore first appellate court is justified in holding that separate suit on the ground of fraud is not sustainable. 5. Yet another formal defect in the frame of the suit is that concededly the final decree in O.S. No.362 of 1969 was challenged by one of the contesting defendants in that suit in A.S. No.189 of 1977 and the final decree was confirmed. That means, the final decree that is sought to be set aside in the present proceeding stands merged in the decree of the first appellate court in A.S. No.189 of 1977. To be more precise final decree of the trial court in O.S. No.362 of 1969 did not exist to be challenged in the present R.S.A. NO.850 of 2003 -: 6 :- proceeding. Challenge ought to have been against the final decree in A.S. No.189 of 1977 (See State of Kerala v. Alam Tapioca Pulvarisors, 1990(2) KLT 632). There is no challenge to the decree in A.S. No.189 of 1977. Hence the suit as framed is not maintainable. In the circumstances plaintiff is not entitled to any relief as rightly found by the first appellate court. None of the questions raised in the memorandum of Second Appeal do arise by way of substantial question of law requiring this Court to admit the Second Appeal and issue notice to the respondents/defendants. The Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.850 of 2003 -: 7 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.850 OF 2003 =================== J U D G M E N T 5TH NOVEMBER, 2009