PADMAVATHI Vs. KAVERIAMMAL

JUDGEMENT

(1.) THE following are the allegations succinctly, as per the petition under Section 47 of C.P.C.: 1 (i) One Ammaniammal filed O.S.No.1093 of 1990 against two sons by name Ponnusamy and Varadharajan and daughter Kavariammal, the respondent herein. THE Trial Court viz., Sub Court, Coimbatore, passed a preliminary decree on 07.02.1995 for partition of the suit property into eight equal divisions and to allot 5 shares to the plaintiff Ammaniammal. THE shares of Ammaniammal alone were declared. THE respondent who was defendant in the suit, remained ex-parte and there was no allotment of share in her favour. Ammaniammal died on 28.1.1999. THE respondent filed an application under Order 20, Rule 18(2) of C.P.C. for passing a final decree wherein the prayer is as per affidavit to allot 5/8 shares to her as per preliminary decree along with 1/4 of her alleged share in the suit property totalling 7/8th share in the suit property in her favour. THE said prayer is in contravention to the declaration of shares in the preliminary decree. Since no share was declared for the respondent in the preliminary decree, the final decree should not have been passed in I.A.No.23 of 1999. 1.(ii) THE respondent claims share of her mother under a will dated 28.11.1995 allegedly executed in her favour by Ammaniammal. THE law is very clear on this point that while the preliminary decree is not deciding the share of the party, she could not make any application for final decree. Final decree cannot amend or go behind preliminary decree on a matter determined by the Court in the preliminary decree proceedings. THE fraud committed by the respondent vitiates every solemn act. Any order or decree obtained by practicing fraud is a nullity. It is also the law of land that any application under Section 47 of C.P.C. the question of nullity of order can be taken up. Since the final decree is nullity it is inexecutable under law. 1. (iii) THE petitioner became major one year prior to passing of the final decree and was shown as respondent in the final decree proceedings to make the same to be ineffective. THE respondent has totally suppressed non-declaration of share in the preliminary decree, being aware of the fact that she could not file any application for passing of final decree under Order 20 Rule 18 of C.P.C. She has misled the Court and by misrepresentation, by false representation and by suppression of material facts abused process of Court and obtained final decree. Consequently execution proceedings in E.P.No.402 of 2005 is also unsustainable under law. THE final decree passed in I.A.No.23 of 1999 has to be declared as null and void and the same cannot be executed legally.

(2.) THE allegations in the counter may tersely be stated as follows:2.(i) It is misleading to contend that only Ammaniammal's share was declared in the preliminary decree. In a partition suit, each of the parties is in the status of plaintiff. THE will dated 28.11.1995 executed by Ammaniammal was proved in the final decree proceedings, in which the petitioner's mother and brother were contesting parties and also the legal heirs of varadarajan, second defendant in the suit. THE petitioner was, at that time, a minor and represented by Court guardian Ms.R.T. Rani. It cannot be stated that in the final decree proceedings, the Court has travelled beyond the preliminary decree. THEre was no deprivation of share of any of the parties by such allotment. It is false to contend that the properties could not be partitioned without the preliminary decree being modified. THE Court has not travelled beyond the preliminary decree. THEre is no abuse of process of court. This respondent is not guilt of fraud. Petition under Section 47 is not maintainable and the final decree is executable one.2.(ii) During the pendency of final decree proceedings, the petitioner's father died and the petitioner and other legal heirs were made as parties. In E.P.No.402 of 2005, after receiving summons, none of the parties to the proceedings appeared, they remained exparte and delivery was ordered. THE respondent filed an application and obtained police protection and permission to break open the building and for delivery of possession. THE petitioner can only claim under her father. Her share has not been denied. Her position in the suit property has not been altered in any way. THE petitioner filed suit in O.S.No.345 of 2006 against this respondent, her brother, petitioner's mother and brother seeking to declare that the preliminary decree and the final decree as null and void. This respondent filed written statement. Adopting two different modes of assailing final decree is abuse of process of law. Petition is totally misconceived, which lacks bona fides and hence the petition may be dismissed.

(3.) ANOTHER ground raised by the petitioner is that inasmuch as the preliminary decree has not declared the share of the respondent, who remained ex-parte in the preliminary decree proceedings, now it is not permissible in law that the preliminary decree could not be amended or altered as to the share available to the respondent. In this connection Ms.P.T. Asha, learned counsel for the petitioner would garner support from the decision of the Apex Court reported in A.I.R.77 SC 292 [Muthangi Ayyana v. Muthangi Jaggarao and others] in which it has been held that final decree in a partition suit cannot amend or go behind the preliminary decree on a matter determined by the preliminary decree. She has also draws attention of this Court to a decision of this Court in AIR 1981 Madras 307 [S.V. Muthu vs. Veerammal] in which it is observed as under:"....... If the defendants' rights have not been declared in the preliminary decree, the aggrieved party can challenge the decree in appeal or can apply for review. But once the preliminary decree contains a declaration as to the defendants' share, they can, even after passing of the preliminary decree, apply for and have their share partitioned on payment of Court fee etc., as may be necessary under the law. Indeed, the Privy Council has pointed out in Lachmi Narain Marwary v. Balmukund Marwary, AIR 1924 PC 198 that after decree it is open to any party to a suit to whose interest it is that further proceedings be taken to initiate the supplementary proceedings, but in the ordinary case it is the plaintiff who moves. If the preliminary decree already passed does not contain any declaration as to the rights of the defendants, their application for partition or separation of their share shall not be maintainable till they have the preliminary decree suitably modified, but when once the preliminary decree contains a declaration as to the defendant's share, they can, even after the passing of the preliminary decree, take steps for the actual separation of their share.".