Janardhanan vs Sumathy and Others

Thomas P. Joseph, J.—All the respondents are served but only the 1st respondent appears through counsel. The Original Petition is in challenge of the finding entered by the learned Principal Sub Judge, Thrissur on I.A. No. 4714 of 2012 in I.A. No. 3070 of 2003 in O.S. No. 725 of 1998.

An ex parte, preliminary decree for partition of the property was passed on 22.09.2001. That was followed by I.A. No. 3070 of 2003 for passing the final decree. After the preliminary decree was passed, Sankaran who is a sharer died in the year 2006. Another sharer, Remani died issueless in the year, 2007. That was followed by the 1st respondent filing I.A. No. 4714 of 2012 to pass a supplementary preliminary decree to allot the shares of Remani. According to the 1st respondent, the share of Remani will devolve on the legal heirs of Sankaran as well, who are respondents 10 to 13 in this Original Petition.

That application was resisted by the petitioner-3rd defendant. He contended that legal heirs of Sankaran will not get the share of Remani.

The learned Sub Judge passed order on I.A. No. 4714 of 2012 accepting the contention of the 1st respondent regarding inheritance and observing that it is not necessary to pass a supplementary preliminary decree as the change that had taken effect can be taken into account by the final decree court. Accordingly I.A. No. 4714 of 2012 was closed. Thus, the challenge to the said order.

The learned counsel for the petitioner contends that the learned Sub Judge has not gone in depth to the provisions of Secs. 15(d) and 8(a) and Class I of the schedule of the Hindu Succession Act (for short, "the Act"). It is contended by the learned counsel that the predeceased sons of Sankaran alone are entitled to succeed to the share of Remani. In this case, Achuthan died in the year 1994 while Sankaran died in the year 2006 and Remani died in the year 2007. According to the learned counsel since death of Achuthan was in the year 1994 and Sankaran died in the year, 2006 legal heirs of Sankaran cannot be treated as predeceased sons as stated in Class I of the Schedule of Sec. 8(a) of the Act. Learned counsel has placed reliance on the decision in Purushothaman P. v. P. Sarojini (2011 [4] KHC 407) to contend that taking note of the change in the shares consequent to the death of the sharers after the preliminary decree, the court below ought to have passed a supplementary preliminary decree so that the petitioner could challenge that preliminary decree by way of appeal.

The learned counsel for the 1st respondent however resisted the contentions.

In the decision cited supra, this Court has held that when there is dispute regarding augmentation of shares after passing the preliminary decree, the proper course is to pass a supplementary preliminary decree. In this case though augmentation of the shares was prayed for by the 1st respondent in I.A. No. 4714 of 2012 and the learned Judge has entered finding regarding augmentation of the shares, he has refused to pass a supplementary preliminary decree. The consequence is that petitioner has lost a right of appeal since there could be no appeal against the finding.

Also it is seen that the learned Sub Judge has made only a sweeping reference to Secs. 15(d) and 8 coupled with the First schedule of the Act and held that the said provisions enfeebled case of the petitioner. It is seen that a detailed consideration of the said provisions is not made. The contention raised by the petitioner requires deeper consideration. Since the learned Sub Judge has not properly considered the rival contentions raised by the parties as to the entitlement of shares of the late Remani and since the learned Sub Judge has refused to pass a supplementary preliminary decree, I am inclined to interfere with the finding entered by the learned Sub Judge and the consequent impugned order. However, I make it clear that I have not made any opinion on the rival claims made by the petitioner and 1st respondent regarding the shares of the late Remani.

Resultantly, the Original Petition is allowed by way of remand as under:

(i) Exhibit P1, order on I.A. No. 4714 of 2012 is set aside.

(ii) I.A. No. 4714 of 2012 (in I.A. No. 3073 of 2003 in O.S. No. 725 of 1998) is remitted to the Principal Sub Court, Thrissur for fresh decision.

(iii) The learned Sub Judge shall consider the rival claims regarding entitlement of the shares of the deceased sharer having regard to the relevant provisions of law and pass appropriate orders on I.A. No. 4714 of 2012 passing a supplementary preliminary as circumstances warranted.

(iv) Since in spite of service of notice, respondents 2 onwards have not appeared in this Court, the learned Sub Judge shall issue notice to those respondents in case they have not already appeared in the final decree proceeding.