IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).NO. 23648 OF 2010(O) -------------------------------------------- OS.273/2009 OF PRINCIPAL SUB COURT,PARAVUR OS.25/1982 OF MUNSIFF COURT, PARAVUR .................... PETITIONER(S): -------------------- 1. KAMALAVATHY BAI, D/O,.PUTHENVEETTIL PADMANABHA MALLAN , NEAR T.D.TEMPLE, MATTANCHERRY,COCHIN-2. 2. DWARAKI BAI,D/O,.PUTHENVEETTIL PADMANABHA MALLAN ,AJANTHA ROAD, PANDIKKUDY, MATTANCHERRY,COCHIN-2. 3. VASANTHAKUMARI,D/O.PUTHENVEETTIL PADMANABHA MALLAN , NEAR T.D.TEMPLE, MATTANCHERRY,COCHIN-2. 4. RAJAN,S/O.THARA BAI,KANAVALLIPARAMBU, KOVILVATTOM ROAD, ERNAKULAM, COCHIN-35. 5. BALAMANI,D/O.THARA BAI, DO. DO. 6. RAMESH,S/O.THARA BAI, DO. DO. BY ADV. SRI.DINESH R.SHENOY SRI.MAHESH MENON RESPONDENT(S): ------------------------ 1. SREENIVASA MALLAN, S/O.PUTHENVEETTIL MADHAVA MALLAN, NEAR S.N.THEATRE SRINGAPURAM,KODUNGALLOOR 680 664. 2. VINOD MALLAN,S/O.VENKITESWARA MALLAN, PUTHENVEETTIL CHIRACKAKOM, VARAPUZHA VILLAGE 683 517. 3. SURESH BABU, S/O.VENKITESWARA MALLAN, PUTHENVEETTIL CHIRACKAKOM, VARAPUZHA VILLAGE 683 517. 4. RAJESH MALLAN, DO. DO. 5. LEELA,W/O.VENKITESWARA MALLAN, PUTHENVEETTIL CHIRACKAKOM, VARAPUZHA VILLAGE 683 517. 6. SHEELA,D/O.VENKITESWARA MALLAN,DO. DO. 7. SOBHA,DO. DO. 8. USHA,DO. DO. 9. MANJULA,DO. DO. ADV. SMT.R.RANJINI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE PHOTOCOPY OF THE PLAINT IN O.S. NO.273 OF 2009, SUB COURT, NORTH PARAVUR. EXHIBIT P2 TRUE PHOTOCOPY OF THE CERTIFICATE OF PURCHASE IN O.A. NO.600 OF 1973, PARAVUR LAND TRIBUNAL. EXHIBIT P3 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE 17TH DEFENDANT/1ST RESPONDENT IN I.A. NO.1884 OF 2009 IN O.S. NO.273 OF 2009, SUB COURT, NORTH PARAVUR. EXHIBIT P4 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT DATED 24.7.2009 FILED BY THE RESPONDENTS 2 TO 9 IN I.A. NO.1884 OF 2009 IN O.S. NO.273 OF 2009, SUB COURT, NORTH PARAVUR. EXHIBIT P5 TRUE PHOTOCOPY OF SETTLEMENT DEED NO.925 OF 1958, EDAPPALLY SRO. EXHIBIT P6 TRUE PHOTOCOPY OF THE ORDER DATED 9.4.2010 IN I.A. NO.1884 OF 2009 IN O.S. NO.273 OF 2009, SUB COURT, NORTH PARAVUR. EXHIBIT P7 TRUE PHOTOCOPY OF THE JUDGMENT DATED 3.7.2010 N C.M.A. NO.13 OF 2010, ADDITIONAL DISTRICT COURT, NORTH PARAVUR. RESPONDENT'S EXHIBITS: ----------------------------------- EXHIBIT R1 PHOTOCOPY OF THE JUDGMENT AND DECREE PASSED IN S.A. NO.775 OF 1985. EXHIBIT R2 PHOTOCOPY OF THE REPORT OF THE ADVOCATE COMMISSIONER AND SKETCH. TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.23648 of 2010 ==================================== Dated this the 17th day of September, 2010 J U D G M E N T In respect of 87 cents in Sy.No.329/9 of Varappuzha Village (as per report of the Advocate Commissioner in O.S. No.25 of 1982 it is 80 cents) and certain residential buildings thereon with respondents herein or their predecessors-in-interest as parties a final decree has been passed in O.S. No.25 of 1982 for partition. Though trial court and first appellate courts dismissed the suit, based on an interpretation given to the settlement deed dated 03.05.1958 this Court in S.A. No.775 of 1985 reversed decision of the courts below and granted a decree. It is not disputed that following that, a final decree was also passed. When the parties thereto were about to execute the decree petitioners before me who, it is not disputed are the daughters and children of a deceased daughter of the late Padmanabha Mallan, one of the parties to the settlement deed dated 03.05.1958 filed O.S.No.273 of 2009 in the court of learned Sub Judge, North Paravur for partition of the said property. They, as legal representatives of W.P(C) No.23648 of 2010 -: 2 :- the late Padmanabha Mallan who was entitled to share in the suit property claimed to have right in the property as per the Hindu Succession Act, 1956 (for short, “the Act”). They alleged that they were not made parties in O.S. No.25 of 1982 and hence the decree passed therein or the subsequent proceedings would not bind them or their right in the property. They therefore, wanted division of the property in accordance with the provisions of the Act as they stated in the plaint. Petitioners claimed that suit properties belonged to Padmanabha Mallan and his three brothers as per a purchase certificate issued from the Land Tribunal on 24.06.1975. According to the petitioners the late Padmanabha Mallan had 1/4th share in the suit property and that share is partible among all the children of the late Padmanabha Mallan including petitioners. Petitioners filed I.A. No.1884 of 2008 for stay of further proceeding in O.S. No.25 of 1982 (pending in the court of learned Munsiff, North Paravur). Contesting respondents resisted the suit on various grounds. They claimed that the purchase certificate relied on by petitioners is fraudulently obtained and that title of predecessor-in-interest is governed by the settlement deed dated 03.05.1958 which was accepted by this Court while deciding S.A. No.775 of 1985. According to the W.P(C) No.23648 of 2010 -: 3 :- contesting respondents petitioners are not entitled to any share in the property and at any rate their entitlement is only to get a share in the 1/5th share allotted to the late Padmanabha Mallan. It is also the contention of contesting respondents that petitioners who were aware of pendency of O.S. No.25 of 1982 are put up at the fag end by one of the parties in O.S. No.25 of 1982 disgruntled with the share allotted to him. Contesting respondents resisted I.A. No.1884 of 2008 on the contention stated above. Learned Sub Judge found that petitioners have no right in the property and accordingly dismissed I.A. No. 1884 of 2009. Learned Sub Judge went to the extent of saying that the purchase certificate relied on by the petitioners is concocted. Petitioners challenged that order in C.M.A. No.13 of 2010. Learned Additional District Judge went a step still further, found that under the law in force petitioners have no right to inherit the property and confirmed dismissal of I.A. No.1884 of 2009. Judgment of learned Additional District Judge is under challenge in this Writ Petition. 2. Learned counsel for petitioners contended that except contending that the purchase certificate dated 24.06.1975 is fraudulently obtained, none of the contesting respondents W.P(C) No.23648 of 2010 -: 4 :- initiated any proceeding to set aside that purchase certificate. Not even a counter claim was raised in their written statement and hence the purchase certificate assumes the character of conclusiveness under Section 72K of the Kerala Land Reforms Act. It is contended by learned counsel that since petitioners are not parties in O.S.No.25 of 2982 the finding or preliminary and final decrees passed thereon cannot bind petitioners. Learned counsel states that even if the purchase certificate cannot be taken into account for any reason whatsoever even as per the settlement deed referred to above, predecessor-in- interest of petitioners (the late Padmanabha Mallan) had 1/4th share in the suit property in which case petitioners are entitled to a share in that 1/4th share. But even for that purpose petitioners were not made parties in O.S.No.25 of 1982 while the female children of some of the other deceased sharers were made parties. Further argument is that since many of the parties were alive as on the commencement of the Act all co-parceners including those born in the family subsequent to 1956 are entitled to a share in which case the division will not be in accordance with the preliminary and final decrees passed in O.S. No.25 of 1982. In response it is contended by learned W.P(C) No.23648 of 2010 -: 5 :- counsel for contesting respondents that it is hard to believe that petitioners were unaware of the litigation which stared in the year 1982 and they learnt about it only in the year 2009 when they came up with O.S.273 of 2009. According to the learned counsel in the light of the settlement deed dated 03.05.1958 which has been given judicial acceptance by this Court in S.A. No.775 of 1985 the Land Tribunal could not have issued purchase certificate and at any rate it has no binding force since no notice was given to the contesting respondents. Hence courts below are justified in rejecting the purchase certificate dated 24.06.1975. It is contended by learned counsel that I.A.No.1884 of 2009 was not maintainable since what is prayed for in that application is stay of proceeding in O.S. No.25 of 1982 and the learned Sub Judge could not have granted stay in respect of a separate proceeding (O.S. No.25 of 1982) pending in another court be it subordinate to the court of learned Sub Judge. Learned counsel contends that the parties to O.S. No.25 of 1982 are litigating since 1982 onwards and at a time when they were about to reap fruits of the decree petitioners have come up with the present suit to stall execution of the final decree in O.S. No.25 of 1982. W.P(C) No.23648 of 2010 -: 6 :- 3. I have gone through the order of learned Sub Judge and judgment of the learned Additional District Judge. It is seen that on core issues which were to be decided by the trial court after trial both the courts have entered findings which have the nature of final decision which I consider was inappropriate and unwarranted. It was not appropriate and was premature for the courts below at this stage to enter a finding that purchase certificate dated 24.06.1975 is concocted. Whether the settlement deed dated 03.05.1958 was executed between the parties thereto and it invalidated any subsequent purchase certificate issued by the Land Tribunal are all matters to be decided by the trial court after trial. Question whether petitioners are entitled to any share in the property in the light of the purchase certificate dated 24.06.1975 or their right if any is to get a share in the 1/5th share of their predecessor-in-interest are also matters which the trial court has to decide after trial of the suit. Hence the findings entered by the courts below on the merit of the case pleaded by the parties are liable to be set aside and I do so, leaving it open to the trial court to decide those matters after trial. 4. True, what is prayed for in I.A. No.1884 of 2009 is for W.P(C) No.23648 of 2010 -: 7 :- stay of proceeding in O.S. No.25 of 1982. Strictly speaking it may not have been possible for learned Sub Judge to grant a stay in respect of a different proceeding pending in another court though subordinate to it. But essentially what is requested by petitioners is to prevent further proceeding pursuant to the final decree in O.S. No.25 of 1982 at the instance of contesting respondents. Therefore notwithstanding the wordings in I.A. No.1884 of 2009, that application can be treated as one intended to prevent parties in O.S. No.25 of 1982 executing the final decree in that case, which falls under Section 41(b) of the Specific Relief Act and since the suit has been instituted in a court superior to the court where proceeding requested to be prevented are pending, the bar under Section 41(b) of the said Act cannot apply. Viewed in that line learned Additional District Judge was entitled to entertain an appeal as if the learned Sub Judge declined to grant an order of injunction. 5. Next question is whether at this stage this Court should prevent execution of the final decree in O.S. No.25 of 1982. The law of temporary injunction informs me that even if a prima facie case is made out, it requires the party claiming injunction to prove irreparable loss or injury to him if injunction W.P(C) No.23648 of 2010 -: 8 :- is not granted and that the balance of convenience is in favour of grant of injunction. So far as the right of petitioners to seek partition in the way they have asserted, I have left that matter to the decision of the trial court and hence I do not intend to go into that question at this stage. 6. So far as the issue regarding irreparable loss and balance of convenience is concerned, admittedly petitioners are the daughters and the children of a deceased daughter of the late Padmanabha Mallan. It is not disputed that petitioner Nos.1 to 3 are residing in their respective matrimonial homes, elsewhere. None of the petitioners are residing in the suit property. The extent of property involved is only 80 cents as Advocate Commissioner in O.S. No.25 of 1982 has ascertained and it takes in a few residential buildings. It is not disputed that respondents or their predecessor-in-interest are fighting the suit for partition from 1982 onwards. It is prima facie difficult to think that petitioners were unaware of the pending litigation from 1982 onwards and they learnt about it only in 2009. Delay will not of course prevent them from enforcing the right they claim in the suit if they are otherwise entitled to that. But while considering the prayer for injunction I must consider that W.P(C) No.23648 of 2010 -: 9 :- petitioners are unlikely to have had no information about the pending suit since 1982 onwards or sufficiently earlier than when they instituted O.S. No. 273 of 2009. But they have come with the present application to prevent respondents from executing the final decree in O.S. No.25 of 1982 only in the year 2009 which is something I should take into account while considering the request of petitioners for injunction. I must also bear in mind that the present litigation might take quite some time as it is only in the preliminary stage. Taking these aspects into account I do not think it just or proper that execution proceeding in O.S. No.24 of 1982 1982 is stalled. I am also not inclined to think that if execution proceeding is not stalled any irreparable loss or injury will be caused to the petitioners. The women among petitioners are married and staying with family in their respective matrimonial homes. If at all petitioners succeed in the suit, they would ultimately get their share in the property. Nor is the balance of convenience in favour of grant of injunction. Hence the request to prevent execution proceeding in O.S. No.25 of 1982 cannot be sustained. 7. At the same time respondents who are parties in O.S. No.25 of 1982 cannot get a free hand in the matter. Execution W.P(C) No.23648 of 2010 -: 10 :- of the decree in O.S. No.25 of 1982 has to be subject to the result of O.S. No.273 of 2009. Property has to be preserved and made available for partition in case petitioners succeed in their claim in O.S. No.273 of 2009. Hence the execution has to be subject to appropriate conditions as well. Resultantly, this Writ Petition is disposed of in the following lines. A) Finding entered by the courts below on I.A. No.1884 of 2009 and C.M.A. No.13 of 2010 as to the merit of the case pleaded by parties are set aside and those matters are left open to be decided by the trail court. B) It is made clear that execution of the decree in O.S. No.25 of 1982 of the court of learned Munsiff, North Paravur will be subject to the result of O.S. No.273 of 2009 of the court of learned Sub Judge, North Paravur and subject to the following conditions: (i) Sharers who take delivery of property in O.S.No.25 of 1982 shall not alienate in any manner, or encumber their respective shares, W.P(C) No.23648 of 2010 -: 11 :- induct third parties into possession thereof or commit waste therein until disposal of O.S. No.273 of 2009. (ii) It is directed that any repair to the existing building or additional structures if put by the sharers who take delivery of their respective shares in execution of the decree in O.S. No.25 of 1982 shall be at the risk of the sharer concerned. They shall not, on account of any such work claim any reservation or equity in O.S. No.273 of 2009 if ultimately petitioners are found entitled to share in the property. THOMAS P. JOSEPH, JUDGE. vsv