MAVUNPOYIL VISWANATHAN Vs. M GANGADHARAN

JUDGEMENT

(1.) FIRST defendant in O.S.No.514/2005 on the file of Additional Munsiff's Court-I, Kozhikode is the appellant. FIRST respondent is the plaintiff and second respondent, the second defendant. Plaint schedule property originally belonged to Kalyani. She gifted the property in favour of appellant and deceased Sarasa, her children. Sarasa was mentally retarded. O.S.No.300/1998 was filed for partition of that property by Sarasa with first respondent as her next friend. A preliminary decree and final decree were passed, where under, plaint B schedule property was allotted to the share of Sarasa. On the death of Sarasa, suit was filed claiming partition and separation of the share of the first respondent, contending that share of Rukmini, Malukutty, Balamani and Rema were assigned in his favour under Exhibit A5. The suit was resisted on the ground that though Exhibit A1 final decree was passed, it was not engrossed in non judicial stamp paper and therefore, no right could be claimed thereunder.

(2.) LEARNED Munsiff, finding that right under a final decree can be claimed only if the final decree is engrossed on the requisite stamp paper as held by this Court in Krishanna Alva v. Deyyakku (1991 (2) KLT 602) and the Honourable Supreme Court in Balwant Lokhande (dead) v. Chandrakant Shankar Lokhande (AIR 1995 SC 1211), dismissed the suit. First respondent challenged the judgment before I Additional Sub Court, Kozhikode in A.S. No.10/2008. By that time, final decree was engrossed in non judicial stamp paper. In the appeal, first respondent produced Exhibit A6, certified copy of the final decree engrossed in non judicial stamp paper with a petition under Order XLI Rule 27 of Code of Civil Procedure to receive it as additional evidence. LEARNED Sub Judge received the same as Exhibit A6 and finding that under Exhibit A6 final decree, plaint B schedule property was allotted to the share of Sarasa, granted a preliminary decree. This second appeal is filed challenging the said preliminary decree.

(3.) THE fact that plaint schedule property originally belonged to Kalyani and it was gifted in favour of Sarasa and appellant and Sarasa, through her next friend, instituted O.S.No. 300/1998 for partition of her half share and a preliminary decree was passed and though it was challenged in A.S.No.66/2003 by the appellant, appeal was dismissed under Exhibit A3 and subsequently, Sarasa filed I.A.No.1433/2003, an application for passing a final decree and a final decree was passed on 28.2.2005 under Exhibit A1 judgment are all admitted. THE only contention raised was that as that final decree was not engrossed in non judicial stamp papers, a suit for partition of the share allotted to Sarasa under that final decree is not maintainable. True, when the suit was instituted, there was no final decree engrossed in non judicial stamp paper. After production of non judicial stamp paper, final decree was engrossed, evidenced by Exhibit A6. Validity of production of non judicial stamp paper is not a ground to interfere with the preliminary decree passed by the first appellate court, as, there exists a valid final decree.