IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 SA.NO. 243 OF 2003() ------------------------------- (AGAINST A.S. NO.50 OF 2000, DISTRICT COURT, KOZHIKODE AGAINST O.S. NO.24 OF 1998, SUB COURT, VADAKARA) APPELLANT(S): RESPONDENTS 4 & 6/DEFENDANT 4 & 6: ------------------------------------------------------------------------------- 1. K.P.CHANDRAN, AGED 57 YEARS, RESIDING AT KORONDATTU POYIL, CHORODE AMSOM AND ERAPURAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 2. K.P.RAJAN, AGED 53 YEARS, RESIDING AT CHORODE AMSOM AND ERAPURAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.N.L.KRISHNAMOORTHY RESPONDENT(S): APPELLANT & RESPONDENTS 2,3,5,7 & 8/ PLAINTIFFS & DEFENDANTS 2,3,5,7,8 --------------------------------------------------------------------------------- 1. KORANDATTU POYIL BALAN, S/O.CHATHU, AGED 61 YEARS, RESIDING AT VARAYEENTEVALAPP PARAMBIL, CHORODE AMSOM AND ERAPURAM DESOM OF VATAKARA TALUK, KOZHIKODE DISTRICT. 2. KORONDOTTUVAYAL RADHA, D/O. ANANTHOTH JANAKI, AGED 59 YEARS, RESIDING AT THEKKENMARKKANDIYIL ANANDA VILLAS HOUSE, AZHEEKKOD AMSOM AND DESOM, KANNUR DISTRICT. 3. KORONDOTTUVAYAL LAKSHMI, AGED 56 YEARS, RESIDING AT LAKSHMI NIVAS, AGED 56 YEARS, JNM HIGH SCHOOL, PUDUPPANAM AMSOM AND DESOM, VATAKARA TALUK. 4. C.M.CHANDRI, AGED 52 YEARS, RESIDING AT SREE CHANDH ALIAS, CHERUKUNDIYAT, ELATHUR AMSOM AND DESOM, KOZHIKODE DISTRICT. 5. KORONDOTTUVAYAL R.M.PUSHPA, AGED 48 YEARS, RESIDING AT PREMIER HOUSE, PUTHIYARA, KOZHIKODE. 6. K.P.RANJINI, AGED 46 YEARS, RESIDING AT 'VISHNUNAYANAM' 3RD MILE, PONYAM WEST, THALASSERY TALUK, KANNUR DISTRICT. ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE FOR R1 BY ADVOCATE SMT. RESHMI DAMODARAN R2 TO R6 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.243 of 2003 -------------------------------------- Dated this the 6th day of March, 2009. JUDGMENT Defendant Nos.4 and 6 have preferred this Second Appeal. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. Plaintiff and defendants 2 to 6 are the children of late Chathu and defendant No.1 (she died during the pendency of the first appeal). Plaintiff sued the defendants for partition and separate position of her one nineth share in the suit property on the premise that the said property along with other items belonged to Erancherry Illom and that it was demised in favour of one Abdulla who in turn leased it to Kannan and others. Abdulla filed O.S.No.562 of 1936 for eviction of the tenants and got a favourable decree . Chathu and his brother, Kannan purchased the property in court auction and got delivery. Later, Chathu got the properties partitioned as per final decree in O.S.No.582 of 1944 and the suit property was allotted to the share of said Chathu. Pending that suit, Chathu obtained jenm right from the jenmi on 22.7.1944, according to the plaintiff, in the name of defendant No.1. Plaintiff claimed that defendant No.1 was only a benamidar for Chathu and that after the death of Chathu, the suit property is available for partition among the legal representatives of said Chathu. Defendants 2, 3, 5 and 8 supported the plaintiffs. Defendant No.1 resisted the suit contending that the property belonged to her, she having obtained it from SA No.243/2003 2 the jenmi. She denied the allegation that she was only a benamidar for her husband, Chathu. She took the property on kanam demise from Erancherry Illom as per document No.2816 of 1944 . Later, herself and the jenmi filed O.S.No.795 of 1944 for eviction of the tenants and in execution of the decree that followed, she got possession of the suit property. She also claimed that as absolute owner, she settled the suit property in favour of defendant Nos. 4 and 6 as per Exts.B12 and B13, settlement deeds and hence, the property is not available for partition. Defendant Nos.4 and 6 also raised similar contentions. Learned Munsiff found that the contention of the plaintiff that the property was acquired by late Chathu is not correct, the suit property belonged to defendant No.1 and hence, it is not available for partition. The suit was dismissed. Plaintiff took the matter in appeal. While that appeal was pending before the first appellate court, defendant No.1 died. As per a statement filed by the plaintiff, himself and defendant Nos. 2 to 6 were recorded as the legal representatives of defendant No.1. Learned District Judge considered the appeal, confirmed the finding of the trial court that the property exclusively belonged to defendant No.1 and hence, is not partiable in the way the plaintiff claimed. But the learned District Judge was of the view that though the property exclusively belonged to defendant No.1, since she died during the pendency of the appeal and plaintiff and defendant Nos.2 to 6 are her legal representatives, they are entitled to get partition of the suit property accordingly. Learned District Judge then proceeded to consider the validity of Exts.B12 and B13 and found that it is not valid. SA No.243/2003 3 Partition was ordered and as against the claim of the plaintiff that as legal representative of Chathu he is entitled to get one nineth share, he was allotted one eighth share in his capacity as legal representative of defendant No.1. That judgment and decree are under challenge in this Second Appeal. 3. Following substantial questions of law are raised for a decision: (i) Was the lower appellate court right in going beyond the pleadings and granting reliefs which were not claimed or prayed for either in the plaint or in the memorandum of appeal? (ii) Has the court jurisdiction to grant relief which is not prayed for or grant a greater relief than what is prayed for? (iii) When the donor admits the gift and when the donees accept the gift has any third party right to challenge the said documents? (iv) Whether the suit without a prayer for setting aside the gift deeds and without paying proper court fee is maintainable? (v) Is there not a denial of opportunity to put forward necessary pleadings and contentions when the court is trying to grant the reliefs which were not prayed for? SA No.243/2003 4 (vi) When the suit itself is for partition of the assets of deceased Chathu alone can a decree be passed for partition of assets of defendant No.1 which is not prayed for? 4. It is contended by the learned counsel for the appellants/defendant Nos.4 and 6 that the courts below having found that the property exclusively belonged to defendant No.1 and is not available for partition as claimed by the plaintiff and the trial court having dismissed the suit, first appellate court was not justified in taking note of the subsequent event of death of defendant No.1 and partitioning the property between the plaintiff and defendant Nos.2 to 6 on the basis that the property belonged to defendant No.1. Learned counsel contends that the very substratum of the case pleaded by the plaintiff having been lost by the finding entered by the courts below, the necessary corollary was a dismissal of the appeal also leaving it open to the parties to sue afresh consequent to the death of defendant No.1 if at all they had a cause of action on account of the death of defendant No.1. Learned counsel placed reliance on the decision of the Apex Court in Satish Chand Makhan v. Govardhan Das Byas [(1984) 1 SCC 369]. It is also contended by the learned counsel that at any rate, the first appellate court was not justified in rejecting Exts.B12 and B13 the execution of which is admitted and upheld by defendant No.1 in her written statement and evidence as DW1. At any rate, no opportunity was afforded to defendant Nos.4 and 6 to prove the due execution of Exts.B12 and B13. SA No.243/2003 5 Learned counsel contended that even before Exts.B12 and B13, defendant No.1 had executed a Will bequeathing the suit property in favour of defendant Nos.4 and 6 and registered that Will as document No.77 of 1977 (defendant Nos.4 and 6 produced that Will in the Second Appeal). According to learned counsel even if Exts.B12 and B13 are not accepted for any reason, the Will executed and registered even before the said deeds (Exts.B12 and B13) should stand. No opportunity was given to defendant Nos.4 and 6 to prove the Will as well. Learned counsel for the plaintiff/contesting respondent would however, contend that the first appellate court was competent to take into account the subsequent event on the finding that the property belonged to defendant No.1 and mould relief accordingly. Learned counsel maintained that Exts.B12 and B13 are not valid. 5. Both the courts on the evidence and in particular, Exts.B2 and B3 found that the property exclusively belonged to defendant No.1. There is no challenge to that finding and that finding has become final. 6. The next question is whether the first appellate court was justified in ordering partition of the property which belonged to defendant No.1, consequent to her death during the pendency of the appeal. No doubt, it is open to the court to mould reliefs taking into account the subsequent events to render complete justice between the parties without leaving them to a fresh suit SA No.243/2003 6 provided, all the persons who would be affected thereby are on the party array and no prejudice is caused to any of them. But when the whole case set up by the plaintiff is found to be untrue or unsustainable and thus the cause of action pleaded is non-existent and defendant Nos.1, 4 and 6 do not admit partiability of the property even on the case set up by them that the property belonged to defendant No.1, no relief could be granted in the same suit on the strength of a part of the case pleaded by the defendants and in view of the subsequent event. In such circumstances, the proper course is either to sue afresh or to amend the pleadings suitably bringing in the alternative case if any and the subsequent event. That has not happened in this case. As pointed out by learned counsel for defendant Nos. 4 and 6 even after the death of defendant No.1, plaintiff merely filed a statement to record himself and defendant Nos.2 to 6 as legal representatives of defendant No.1 but the plaint averments and the relief continued to be that the plaintiff wanted partition of his one nineth share as if the property belonged to the late Chathu. In fact, since the courts below found that the property exclusively belonged to defendant No.1 and in so far as the subsequent event of her death and the alleged partiability of the property following that were not brought up by appropriate amendment of the plaint, it was not necessary to consider whether Ext.B12 and B13 are valid. Learned counsel for defendant Nos.4 and 6 contended that even if an amendment of the plaint is permitted, the entire averments will have to be changed and there must be a prayer to set aside Exts.B12 and B13 on payment of court fee under the SA No.243/2003 7 appropriate provisions of the Court Fees and Suits Valuation Act. In the facts and circumstances of the case I am inclined to uphold the contention of defendant Nos.4 and 6/appellants that the first appellate court should not have gone into the exercise of directing partition of the properties consequent to the death of defendant No.1 in the nature of the averments in the plaint and in the nature of the evidence let in. When a challenge is made against Exts.B12 and B13, defendant Nos.4 and 6 are entitled to adduce appropriate evidence in its support. They should also get opportunity to prove the Will, if they are so advised. As such the finding entered by the courts below as to the validity of Exts.B12 and B13 and the judgment and decree of the first appellate court to the extent it directed partition of the suit property consequent to the death of defendant No.1 are liable to be set aside. But I make it clear that it will be open to the parties concerned if they are so advised and otherwise entitled, to initiate fresh action for partition on the subsequent cause of action if any available to them. 7. No other point is raised for consideration. Resultantly, this Second Appeal is allowed in the following lines:- (i) The finding entered by the courts below as to the validity of Exts.B12 and B 13 are set aside and the question whether Exts.B12 and B13 are valid and binding is left open for consideration in appropriate proceedings. SA No.243/2003 8 (ii) The judgment and decree of the first appellate court to the extent it directed partition of the suit property are set aside. (iii) The dismissal of the suit by the trial court is restored but without prejudice to the right of the parties concerned, if any, to initiate fresh action as stated above. (iv) Both sides shall bear their respective costs in all the courts. C.M.P.No.994 of 2003 and I.A.No.483 of 2003 will stand dismissed. The document sought to be produced vide I.A.No.483 of 2003 shall be returned to the counsel for appellants/defendant Nos.4 and 6 on proper acknowledgement. THOMAS P.JOSEPH, Judge. cks SA No.243/2003 9 Thomas P.Joseph, J. S.A.No.243 of 2003 JUDGMENT 6th March, 2009.