Kerala High Court
Jayalakshmi vs Padminidevi on 3 September, 2024
O.P.(C).No.86 of 2019
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2024:KER:66235
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
OP(C) NO. 86 OF 2019
AGAINST THE ORDER DATED 15/12/2018 IN E.P.NO.369/2013 IN
OS NO.655 OF 1991 OF THE SUBORDINATE JUDGE'S COURT, THRISSUR.
PETITIONER:
JAYALAKSHMI,
AGED 50 YEARS,
W/O.NARAYANAN, KONGOTH HOUSE,
VILVATTOM VILLAGE DESOM,
THRISSUR TALUK-680 008.
BY ADV G.SREEKUMAR (CHELUR)
RESPONDENT:
PADMINIDEVI,
W/O.POTANAT PADMANABHAN NAIR,
THALIKATUSSERY, OLLUR, THRISSUR - 680 001.
BY ADV SRI.K.S.BHARATHAN
THIS OP (CIVIL) HAVING COME UP FOR FINAL HEARING ON
22/08/2024, THE COURT ON 03/09/2024 DELIVERED THE FOLLOWING:
O.P.(C).No.86 of 2019
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2024:KER:66235
C.S.SUDHA, J.
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O.P.(C).No.86 of 2019
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Dated this the 3rd day of September 2024
JUDGMENT
This original petition under Article 227 of the Constitution of India has been filed challenging Exts.P17 and P18 orders in E.P.369/2013 in O.S.No.655/1991 on the file of the Subordinate Judge's Court, Thrissur. The parties in this petition will be referred to as described in O.S.No.655/1991.
2. O.S.No.655/1991, a suit for partition, was filed by one Narayani Amma and her six children claiming 7/8 share in 21 cents of property and a house situated therein, which belonged to her mother, late Lakshmikutty Amma. The 1st defendant Madhavan Nair, was her brother and defendants 2 and 4, the daughters of the 1 st defendant and the 3rd defendant, the husband of the 2nd defendant. In the suit, Ext.A16 settlement deed dated 26/12/1999 was produced as per which the 1 st defendant Madhavan Nair claiming to be absolute owner of the entire O.P.(C).No.86 of 2019 3 2024:KER:66235 21 cents of property settled the same in favour of his two daughters, namely, the 2nd defendant Jayalakshmi and the 4th defendant Padminidevi. The suit was decreed finding that late Lakshmikutty Amma constituted a thavazhi and hence the plaintiffs were entitled to 7/8 share in the property. The balance 1/8 share devolved on the 1 st defendant. The preliminary decree has become final. Thereafter, the 2 nd plaintiff Karunakaran, filed an application for passing final decree seeking his share of 1/8 to be allotted to him. The 2 nd plaintiff claimed his share alone as by that time the 4 th defendant Padminidevi, had purchased the share of the other plaintiffs. The 4th defendant on the basis of a Will executed by the 1 st defendant claimed that the entire share of the 1st defendant/her father, had been bequeathed to her and thus she obtained 7/8 share in the property.
2.1. Final decree was passed as per Ext.P3 order dated 06/11/2012, by which 'A' schedule property having an extent of 2.600 cents was allotted to the 2nd plaintiff and 'B' schedule having an extent of 18.300 cents was allotted to the 4th defendant. The 2nd defendant Jayalakshmi challenged Ext.P3 order by filing A.S.No.39/2013 before O.P.(C).No.86 of 2019 4 2024:KER:66235 the District Court, Thrissur, which appeal was dismissed. Aggrieved by the dismissal, the 2nd defendant filed second appeal no.754/2015, which also ended in dismissal by Ext.P4 judgment dated 23/02/2016.
2.2. As per Ext.P11 order dated 08/09/2016, delivery of the property as per Ext.P3 final decree to the 4th defendant was ordered. Challenging Ext.P11 order, the 2nd defendant filed O.P. (C).No.2422/2016. This Court by Ext.P12 order dated 07/08/2017 disposed of the petition by holding that the executing court shall effect delivery subject to the right of the 2nd defendant taking into account the fact that the latter was residing in the building in the property. It was further held that the question whether the 1st defendant Madhavan Nair had any right to create a bequest as claimed by the 4 th defendant Padminidevi can be decided in appropriate proceedings. The 4th defendant filed a review petition, namely, R.P.No.835/2017 for reviewing Ext.P12 order. This Court by Ext.P14 order dated 12/09/2018 disposed of the petition by holding that there was no bar for the 4th defendant to take delivery of the property and that the question whether the 1st defendant Madhavan Nair had any right to bequest after O.P.(C).No.86 of 2019 5 2024:KER:66235 executing Ext.A16 settlement deed (Ext.B1) was a matter to be decided in appropriate proceedings. Pursuant to the same, the 2 nd defendant filed E.A.No.1136/2018 in E.P.No.369/2013 stating that only symbolic delivery could be ordered as she is residing in the building situated in the property and as her right has been recognized in Exts.P12 and P14 orders, delivery could be effected only subject to her right in the property. The execution court by Ext.P17 order dated 15/12/2018 dismissed the petition and by Ext.P18 order directed delivery to be effected. The 2nd defendant has come up challenging Exts.P17 and P18 orders.
3. It was submitted by the learned counsel for the 2 nd defendant/petitioner that she is residing in the building in the property. As per Ext.A16 settlement deed (B1), the 1st defendant father, had settled the property in favour of the 2nd defendant as well as the 4th defendant and hence the 2nd defendant has half right in her father's share of 1/8 in the decree schedule property. This right has been recognized by this court in Exts. P12 and P14 orders and hence only symbolic delivery of the property can be ordered. The execution court without O.P.(C).No.86 of 2019 6 2024:KER:66235 understanding the effect of Exts.P12 and P14 orders has erroneously ordered delivery of the property which is liable to be reversed.
3.1. Per contra, it was submitted by the learned counsel for the 4th defendant/respondent that in Ext.P4 judgment as well as in Exts.P12 and P14 orders, it has been made clear that the right claimed by the 2nd defendant is not a matter coming under Section 47 CPC. The claim of the 2nd defendant has been rejected in Ext.P4 judgment. Therefore, if at all she has any claim in the property, she is free to get it adjudicated in appropriate proceeding and therefore, there is no bar in effecting delivery and so the impugned order calls for no interference.
4. Heard both sides.
5. Admittedly, the preliminary decree by which 7/8 share was allotted to the plaintiffs and 1/8 share to the 1st defendant has become final. From Ext.P3 order, it appears that A.S.No.136/1997 was filed against the preliminary decree. In the said appeal, the 4 th defendant claimed that the 1st defendant, her father, had executed a Will as per which his entire 1/8 share has been bequeathed to her. The genuineness of the Will propounded by the 4th defendant was upheld O.P.(C).No.86 of 2019 7 2024:KER:66235 and she was found entitled to 7/8 share, that is, 1/8 share of the 1 st defendant, her father, and the right of all the plaintiffs except the 2nd plaintiff. Finding so, Ext.P3 final decree was passed. This was challenged in R.S.A.No.754/2015. In the second appeal, the 2 nd defendant contended that the 1st defendant had executed Ext.P16 settlement deed in respect of the decree schedule property by which the property was settled equally in favour of her and the 4 th defendant long before the suit. After the execution of the settlement deed, no right remained with the 1st defendant to execute a Will as claimed by the 4 th defendant. Therefore, the court was not justified in passing a final decree allotting the entire share of the father also to the 4th defendant.
6. This argument of the 2nd defendant has been rejected in the first appeal as well as in the second appeal. This Court, after considering the arguments of both sides in Ext.P4, held thus -
"4. The learned counsel for the appellant reiterated the contentions raised by the second defendant before the lower appellate court. According to him, the document relied on by him was produced in the first appeal preferred by the first defendant challenging the preliminary decree to contend that the suit property belongs to him and that the plaintiffs have no right in the suit property. According O.P.(C).No.86 of 2019 8 2024:KER:66235 to the learned counsel, the inter se dispute between the second defendant and the fourth defendant was never the subject matter of the first appeal preferred against the preliminary decree by the first defendant and as such, it is open to him to agitate the said issue in the final decree proceedings.
5. The judgment in the suit as also the judgments in the first appeal and the second appeal preferred against the judgment in the suit indicate that the issue adjudicated in the suit as also the appeals preferred against the decision in the suit was as to the rights of the plaintiffs to get a decree for partition claimed by them. True, in the light of the document relied on by the second defendant, she could have moved the trial court for passing of a supplementary preliminary decree in her favour in respect of a portion of the 1/8 share of the first defendant. But the said course has not been done by the second defendant. In so far as the right presently claimed by the second defendant is a right accrued to her long prior to the institution of the suit, I do not think that she is entitled to make a claim regarding the said right in the final decree proceedings. In the said view of the matter, the courts below cannot be faulted for having not adjudicated the said claim raised by the second defendant while passing the final decree. There is therefore, no merit in the second appeal and the same is accordingly dismissed." (Emphasis supplied)
7. It is true that this Court in Ext.P12 held thus -
"The court below shall deliver the property to the respondent O.P.(C).No.86 of 2019 9 2024:KER:66235 subject to the right of the petitioner, especially when she is residing in the house. The question whether Madhavan Nair had the right to create a bequest, as now claimed by the respondent will be decided in an appropriate proceedings."
7.1. But this has been clarified in Ext.P14 order which reads thus -
"8. All these contentions probably will have the effect of re- opening the whole judgment in the original petition. It is settled proposition of law that a review is not an appeal in disguise and the scope of interference in a review is very limited. It can be seen that the contentions raised by the respondent herein (petitioner in original petition) that she is entitled to take up all the contentions in the execution petition under Section 47 of the Code has been repelled by this Court. It is clear from the judgment under review that there is no bar for the review petitioner taking delivery of the property by executing the decree passed in the suit. The observation in the last portion of the judgment, that whether Madhavan Nair had the right to bequest after executing Ext.B1 settlement deed is a matter to be decided in appropriate proceedings, only means that this can be decided in a competent proceeding brought before an appropriate court. It does not arise in the execution proceedings. I find no reason to review the judgment."(Emphasis supplied) O.P.(C).No.86 of 2019 10 2024:KER:66235
8. Therefore, it is clear that the claim now raised by the 2nd defendant/petitioner had in fact been considered earlier and rejected. Ext.P14 does not say that delivery is to be effected subject to the right of the 2nd defendant. This has been made clear in Ext.P4 judgment also.
9. An argument was also advanced by the learned counsel for the 4th defendant drawing my attention to the proviso to Section 115 CPC that the present petition is not maintainable and the remedy if at all available to the petitioner was to move under Section 115 CPC. The proviso says that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
10. Here I refer to the dictum in Raj Shri Agarwal @ Ram Shri Agarwal v. Sudheer Mohan, 2022(7) KHC 270 : 2022(5) KLT OnLine 1100. That was a case in which the High Court concerned had dismissed the petition filed under Article 227 which was filed challenging the order passed by the trial court dismissing an O.P.(C).No.86 of 2019 11 2024:KER:66235 application under Order VI Rule 17 CPC. The petition was dismissed holding the same to be not maintainable as the remedy by way of revision under Section 115 CPC was available to the plaintiffs therein. Reversing the order of the High Court, it was held when there is a remedy under Section 115 CPC, normally a petition under Article 227 would not lie. But that would not mean that a petition under Article 227 was not maintainable at all. There is a distinction between entertainability and maintainability. The remedy under Article 227 is a constitutional remedy which cannot be taken away. In a given case, the Court may not exercise its power under Article 227, if the court is of the opinion that the aggrieved party has another efficacious remedy available under CPC. However, to say that a petition filed under Article 227 is not maintainable at all is not tenable. It was further held that if the High Court was of the view that the remedy available to the petitioners was under Section 115 CPC, the Court ought to have converted the petition under Article 227 into a revision petition under Section 115 CPC and considered the same in accordance with law and on its merits, rather than permitting the petitioners to file a fresh O.P.(C).No.86 of 2019 12 2024:KER:66235 revision application under Section 115 CPC. Thus, the argument advanced that the present petition is not maintainable and is liable to be dismissed on the said count alone, is not tenable.
I find no infirmity in the impugned order calling for an interference.
Hence, the petition is dismissed.
Sd/-
C.S.SUDHA JUDGE ak O.P.(C).No.86 of 2019 13 2024:KER:66235 APPENDIX OF OP(C) 86/2019 PETITIONER'S EXHIBITS:-
EXHIBIT P1 A TRUE COPY OF THE JUDGMENT IN S.A.NO.1022 OF 01 DATED 11.8.2010 ON THE FILE OF THIS HON'BLE COURT.
EXHIBIT P2 A TRUE COPY OF THE JUDGMENT IN O S NO.655 OF 91 DATED 17.11.95 ON THE FILE OF THE SUB COURT, THRISSUR.
EXHIBIT P3 A TRUE COPY OF THE ORDER IN FINAL DECREE APPLICATION I A NO.3121 OF 2001 IN OS NO.655 OF 91 DATED 6.11.2012 ON THE FILE OF THE PRINCIPAL SUB COURT, THRISSUR.
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT IN R.S.A. NO.754 OF 2015 DATED 23.2.16 ON THE FILE OF THIS HON'BLE COURT.
EXHIBIT P5 A TRUE COPY OF THE E.P.NO.369 OF 2013 IN O.S.NO.655 OF 91 ON THE FILE OF THE SUB COURT, THRISSUR.
EXHIBIT P6 A TRUE COPY OF THE E.A.NO.894 OF 2015 IN E.P.NO.369 OF 2013 IN O.S.NO.655 OF 91 ON THE FILE OF THE ADDL. SUB COURT, THRISSUR DATED 13.7.2015.
EXHIBIT P7 A TRUE COPY OF THE OBJECTIONS TO EXHIBIT P6 DATED 29.7.2015.
EXHIBIT P8 A TRUE COPY OF THE E.A.NO.684 OF 2016 IN E.P.NO.369 OF 2013 IN O.S.NO.655 OF 91 ON THE FILE OF THE ADDL. SUB COURT, THRISSUR DATED 13.7.2015.
EXHIBIT P9 A TRUE COPY OF THE OBJECTIONS TO EXHIBIT P8 DATED 3.6.2016.
EXHIBIT P10 A TRUE COPY OF THE OBJECTION IN THE EXECUTION PETITION FILED BY THE PETITIONER DATED 22.8.2016.O.P.(C).No.86 of 2019 14
2024:KER:66235 EXHIBIT P11 A TRUE COPY OF THE COMMON ORDER PASSED IN E.A.NOS. 894 OF 2015 AND IN E.A.NO.684 OF 2016 IN E.P.NO.369 OF 2013 IN O.S.NO.655 OF 91 ON THE FILE OF THE ADDL. SUB COURT, THRISSUR DATED 8.9.2016.
EXHIBIT P12 A TRUE COPY OF THE JUDGMENT DELIVERED BY THIS HON'BLE COURT IN O.P.NO.2422 OF 2016 DATED 7.8.2017.
EXHIBIT P13 A TRUE COPY OF THE REVIEW PETITION FILED BY THE RESPONDENT AS R.P.NO.835 OF 2017 IN O.P.NO.2422 OF 2016 DATED 13.9.2017.
EXHIBIT P14 A TRUE COPY OF THE ORDER PASSED IN
R.P.NO.835 OF 2017 IN O.P.NO.2422 OF 2016
BY THIS HON'BLE COURT DATED 12.9.2018.
EXHIBIT P15 A TRUE COPY OF THE E.A.NO.1136 OF 2018 IN
E.P.NO.369 OF 2013 IN O.S.NO.655 OF 91
DATED 1.12.2018.
EXHIBIT P16 A TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT TO EXHIBIT P15 DATED 11.12.2018.
EXHIBIT P17 A TRUE COPY OF THE ORDER PASSED IN
E.A.NO.1136 OF 2018 IN E.P.NO.369 OF 2013
IN O.S.NO.655 OF 91 DATED 15.12.2018 ON THE
FILE OF THE 2ND ADDL. SUB JUDGE, THRISSUR.
EXHIBIT P18 A TRUE COPY OF THE ORDER PASSED IN
E.P.NO.369 OF 2013 IN O.S.NO.655 OF 91
DATED 15.12.2018 ON THE FILE OF THE 2ND
ADDL. SUB JUDGE, THRISSUR.