KALIKUTTYGOPALAN v. SUBHADRA

MALAYIDOMTHURUTHU KARA, KIZHAKKAMBALAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

2 AMBIKA

AGED 62 YEARS

D/O.SANKARAN NAIR, KANNATTU HOUSE,

MALAYIDOMTHURUTHU KARA, KIZHAKKAMBALAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

3 AYYAPPAN

AGED 76 YEARS

S/O. KALUKURUMBAN, PARTHYATHUKAVUNGAL,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

4 CHANDRAN

AGED 73 YEARS

S/O. KALUKURUMBAN, PARTHYATHUKAVUNGAL,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

5 GOPALAN

AGED 72 YEARS

S/O. KALUKURUMBAN, PARTHYATHUKAVUNGAL,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

6 KODUNGU KUMARAN

AGED 88 YEARS

W/O. LATE KUMARAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, (DIED). (HIS LEGAL

REPRESENTATIVES ARE RESPONDENTS 7 TO 15 ON RECORD),

PIN - 683561

7 KRISHNAN

AGED 61 YEARS

S/O. LATE KUMARAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

8 AMMINI

AGED 67 YEARS

D/O. LATE KUMARAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

2

9 LEELA

AGED 65 YEARS

D/O. LATE KUMARAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, (DIED) (HER LEGAL

REPRESENTATIVES ARE RESPONDENTS 24 & 25), PIN - 683561

10 VALSA

AGED 63 YEARS

D/O. LATE KUMARAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

11 MINI

AGED 58 YEARS

D/O. LATE KUMARAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

12 SINI

AGED 55 YEARS

D/O. LATE KUMARAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

13 SUNIL

AGED 51 YEARS

S/O. LATE KUMARAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

14 ANITHA

AGED 48 YEARS

D/O. LATE KUMARAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

15 SARITHA

AGED 48 YEARS

D/O. LATE KUMARAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

3

16 LAKSHMI

AGED 85 YEARS

W/O. LATE THEVAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

17 SUDHA

AGED 63 YEARS

D/O. LATE THEVAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

18 BABU

AGED 61 YEARS

S/O. LATE THEVAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

19 SAJI

AGED 59 YEARS

S/O. LATE THEVAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK,, PIN - 683561

20 SHIBU

AGED 57 YEARS

S/O. LATE THEVAN, PARIYATHUKAVU, MALAYIDAMTHURUTH,

SOUTH VAZHAKULAM KARA, VAZHAKKULAM VILLAGE,

KUNNATHUNADU TALUK, PIN - 683561

21 BEENATHANKAPPAN

AGED 57 YEARS

W/O. LATE THANKAPPAN, PARIYATHUKAVU,

MALAYIDAMTHURUTH, SOUTH VAZHAKULAM KARA,

VAZHAKKULAM VILLAGE, KUNNATHUNADU TALUK, PIN -

683561

22 AKHILMONTHANKAPPAN

AGED 39 YEARS

S/O. LATE THANKAPPAN, PARIYATHUKAVU,

MALAYIDAMTHURUTH, SOUTH VAZHAKULAM KARA, VAZHAKKULAM

VILLAGE, KUNNATHUNADU TALUK, PIN - 683561

23 ABINTHANKAPPAN

AGED 34 YEARS

S/O. LATE THANKAPPAN, PARIYATHUKAVU,

4

MALAYIDAMTHURUTH, SOUTH VAZHAKULAM KARA, VAZHAKKULAM

VILLAGE, KUNNATHUNADU TALUK, PIN - 683561

24 NANCY MOL.P.

AGED 36 YEARS

PARIYATHYKAVU,MALAYIDAMTHURUTHU,

SOUTH VAZHAKULAM KARA,VAZHAKKULAM VILLAGE

KUNNATHUNADU TALUK, PIN - 683561

25 ATHIRAMOL.P.

AGED 25 YEARS

PARIYATHUKAVU,MALAYIDAMTHURUTHU,

SOUTH VAZHAKULAM KARA,VAZHAKULAM

VILLAGE,KUNNATHUNADU TALUK, PIN - 683561

BY ADVS.P.VISWANATHAN SR.

AJITH VISWANATHAN

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION

ON 09.12.2024, THE COURT ON 12.12.2024 DELIVERED THE

FOLLOWING:

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JUDGMENT

Dated this the 12^th day of December, 2024 This Second Appeal has been filed under Section 100 read with Order

42 Rule 1 of the Code of Civil Procedure. The appellants were the petitioners/applicants in E.A.No.257 of 2023 in E.P.No.240 of 2022 in O.S.No.539 of 1984 before the Munsiff's Court, Perumbavoor (hereinafter referred to as "the petitioners").

2. The said E.A. was filed invoking Order 21 Rule 97 of the C.P.C. It had been dismissed by the Munsiff vide order dated 22.12.2023. The said order, deeming it to be a decree, was challenged in appeal as A.S.No.1 of 2024 before the Sub Court/Civil Judge (Senior Division), Perumbavoor. The said A.S. was also dismissed vide judgment dated 28.06.2024. Aggrieved by the same, the claim petitioners have filed this Regular Second Appeal.

3. R.S.A. was posted for admission on various dates and was heard on 02.12.2024 and 04.12.2024.

Brief facts as per the Claim Petition:

4. Petitioners are the grandchildren of Kodungali of Pariyath Kavungal family. Kodungali was in absolute possession and enjoyment of 2.62 acres of property (sarkar tharisu) comprised in survey Nos.391/1C of Vazhakulam Village. Kodungali had obtained the said property from his father Chothi. The property had been in the uninterrupted continuous possession and enjoyment

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of Pariyath Kavungal family for more than 100 years. Before Kodungali passed away, he had orally directed that the property left behind by him should be equally shared among all his grandchildren. The properties were not partitioned. Respondents 3 to 23 are members of the Pariyath Kavungal family and uncles, aunts, cousins and relatives of the petitioners. Though married and staying away from the properties, petitioners along with respondents 3 to 23 are in joint possession and enjoyment of the property. They occasionally reside in the 'tharavad' house in the property and their children assist in the agricultural operations and also take the income and usufructs from the property. While so, petitioners' father Kallukurumban died in the year 1997. Their mother Kallukurumba died in 2007. In the year 2023 so as to source money for the proposed marriage of the granddaughter of the 1^stpetitioner, the petitioners sought for partition of property. They found the relatives 3 to 23 evasive and non co-operative. Petitioners were told that there were some issues, but the details were not specified. It was later on 31.08.2023 that they were told that there were some litigations initiated by one Sankaran Nair and that a suit numbered as OS No.539 of 1984 had been filed before the Munsiff Court, Perumbavoor, which after various rounds and stages of litigation traversed up to the High Court and the Supreme Court had by then been decreed against them. Said litigations had culminated in E.P.No.240 of 2022 filed by the respondents 1 and 2 (Decree holders) before the Munsiff Court, Perumbavoor for execution of the decree for obtaining possession of the

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property. Petitioners thus came to know for the first time about the litigation O.S.No.539 of 1984 and about E.P.No.240 of 2022. It was learnt that in the E.P., an Advocate Commissioner had been appointed to measure out the properties decreed to be delivered to respondents 1 and 2. Petitioners thus filed E.A.No.257 of 2023 in the said E.P. invoking Order 21 Rule 97 CPC, obstructing the execution.

Proceedings before the Munsiff Court:

5. Respondents 1 and 2 filed a counter affidavit inter alia pointing out that the E.A. filed, feigning ignorance of the court proceedings and litigations which were defended right from the Munsiff Court, Perumbavoor to the High Court and up to the Supreme Court by the father of the petitioners late Kalukurumban, was only a ruse and a last-ditch effort to deny the fruits of the prolonged litigation which had been initiated by their father Sankaran Nair against petitioners' father Kalukurumban and his siblings. The litigation which passed through different stages culminated in the decree wherein it was found that the father of the petitioners and his brothers were rank trespassers in the decree schedule property and this decision had been confirmed by the High Court and the Supreme Court. Therefore, the petitioners were not a necessary party in the said proceedings. They were substantially represented by their father, mother and brothers who claimed the same rights in the decree- scheduled properties. The same contentions as now raised by the petitioners had been raised by them in the original suit and in the appeal filed before the

8

High Court and Supreme Court. The said proceedings had been pending before the courts for the last more than 40 years and the claim now put forth by the petitioners that they knew about the suit only in the year 2023 is false and frivolous. The contentions now being raised by the petitioners had already been raised by their predecessor late Kalukurumban and others and they were rejected by the High Court and the Supreme Court. Hence, the contentions in the claim petition are hit by res judicata and are not maintainable. The contention that petitioners' grandfather Kodungali, before he passed away, had orally directed that the property left behind by him should be equally shared among all his grandchildren is only a feeble attempt to get over res judicata and the same lacks any evidence or legally reliable proof. The claim petition is not maintainable under Order 21 Rule 97 and the same is to be dismissed.

6. The learned Munsiff raised a lone point for consideration viz., whether the claim petition was maintainable. Exts.A1 to A21 were marked from the side of the petitioners, and Exts.B1 to B7 were marked from the side of the respondents. After hearing both sides, the learned Munsiff dismissed the claim petition as not maintainable vide order dated 22.12.2023. Proceedings before the First Appellate Court:

7. Petitioners preferred an appeal (AS No. 01/2024) before the Civil Judge (Senior Division) Perumbavoor challenging the order of the Learned Munsiff, dismissing the claim petition. The First Appellate Court, after a

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detailed consideration of the contentions raised, dismissed the appeal vide judgment dated 28.06.2024. Aggrieved by the same, this Second Appeal is filed by the petitioners.

The R.S.A. and the substantial questions sought to be raised:

8. In the Second Appeal, the petitioners sought to raise the following substantial questions of law:

1. "Have not the courts below gone wrong in law and miserably failed to understand the scope of and follow the procedure envisaged in law in proceedings under R.97 to R.104 of O.21 of the Code of Civil Procedure 1908?

2. Have not the courts below gone wrong in law in venturing into the merits and demerits of the rival contentions and disputed facts, when the only preliminary consideration was as to whether the application under Order

21 Rule 97 of CPC was maintainable and when all issues to be gone into in trial in the proceedings are not even raised nor all evidence as to the case of the parties been let in, and in fact no consideration on the actual merits of the case in full has been addressed before court also and in doing so, have not the courts below completely lost sight of the ambit of the consideration of issue of "maintainability" and as to what is to be gone into in respect of the same?

3. Have not the courts below gone wrong in relying on the judgment and decree in O.S.No.539/84 of the Hon'ble Munsiff's Court, Perumbavoor as confirmed by the Hon'ble High Court also, in this proceedings overlooking the fact that admittedly therein the appellants herein are not made parties and that by no means it would be binding on the petitioners/appellants under any provision of the Evidence Act nor would be res judicata against them nor would be an estoppel against them?

4. Have not the courts below in dismissing E.A.No.257/2023 as not maintainable, illegally foreclosed the valid contentions of fraud in the

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decree in O.S.No.539/84 and also the fraud in the very claim of title by the plaintiffs therein/respondents 1 and 2 herein and thereby rendered illegal judgment and order?

5. Have not the courts below have gone wrong in law and understanding and applying the doctrine of substantial representation, in the facts and circumstances of the case?

6. Have not the courts below gone wrong in law in not seeing that it is paramount principle of law and justice that fraud vitiates even the most solemn of proceedings?"

9. Heard Sri.M.P.Ramnath, learned counsel appearing on behalf of the appellants and Sri.P.Viswanathan, learned Senior Advocate instructed by Sri.Ajith Viswanathan appeared for the respondents 1 and 2.

10. Contentions on behalf of the appellant:

• The learned Munsiff erred in dismissing the claim petition on the ground of maintainability without affording the petitioners an opportunity to tender evidence. The issue of maintainability, in the case at hand, was a mixed question of fact and law, and it ought not to have been decided as a preliminary issue.

• Though the execution court (Munsiff Court) initially kept the delivery of the property in abeyance and proceeded to ascertain the maintainability of the obstruction petition, it had later erroneously confined the exercise to the question of maintainability and did not give an opportunity to the petitioners to raise any other issues. All that had happened in E.A.No.257 of 2023 which led to the impugned order dated 22.12.2023

11

is a hearing on maintainability so as to ascertain whether the E.A. is maintainable or not. The pivotal documents produced by the petitioners were simply marked and a hearing was addressed. The procedure adopted by the learned Munsiff was grossly erroneous and violated the scope and intent of a claim petition under Order 21 Rule 97 CPC.

• The execution court erroneously dismissed the claim petition/ obstruction petition without even entering into a trial and adjudication. The court never addressed or considered the various disputed questions of fact that were beyond the purview of the issue of maintainability.

• Substantial prejudice has been occasioned to the petitioners in so far as none of their valid contentions, as well as the very relevant documents produced, which would have clinched the issue in their favour, were discussed or considered by the execution court while dismissing the claim/obstruction petition on the question of maintainability.

• Since the bar of res judicata was raised against the claim petition, the learned Munsiff ought to have noted that the question of res judicata is a mixed question of law and fact, cannot be decided as a preliminary issue and it required evidence on pleadings.

• The finding arrived at by the courts below regarding res judicata is unsustainable. It ought not to have been considered as a preliminary issue. The jurisdiction to try issues of law apart from the issues of fact could be exercised only where in the opinion of the court the whole suit

12

may be disposed of on the issues of law alone. The Code refers to no jurisdiction upon the court to try mixed issues of law and fact as a preliminary issue. Limitation, too being a mixed question of law and fact, cannot be decided as a preliminary issue. The courts below erred on that ground too. These contentions were butressed by relying on the dictum laid down in Salim D. Agboatwala and others v. Shamalji Oddhavji Thakkar and others (AIR 2021 SC 5212); Hareendran and others v. Sukumaran and others (AIR 2017 SC 2697); Taj Kerala Hotels and Resorts Ltd. v. Easytec India Pvt. Ltd. (2013 (4) KLT 621)

Reetha John and others v. Kunjappan @ Varathappan and others

(2017 KHC 674).

• The contention that the petitioners were substantially represented in the earlier proceedings is unsustainable. Respondents 1 and 2 had specifically contended that even while they impleaded the petitioners' brothers after the death of the Kalukurumban and Kalukurumba, viz., the father and mother, respectively, they deliberately chose not to implead the daughters as legal heirs. This was even though the very existence of the petitioners and their rights in the property were known to respondents 1 and 2. In view of the said specific contention, the doctrine of substantial representation cannot be pressed into service by respondents 1 and 2. The courts below erred in considering this aspect.

• There is nothing in the law that prevents the petitioners from putting up

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their own independent title. Rather than a prohibition or bar, there exists an affirmative sanction in law enabling such an action. Under Sub Clause (2) of Rule 4 of Order 22 of the CPC, any person who is made a party as the legal representative of the deceased defendant is entitled to make any defense, appropriate to his character as legal representative of the deceased defendant. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Reliance is placed on the dictum in Jagdish Chander Chatterjee and others v. Sri Kishan and another (AIR 1972 SC 2526); Bal Kishan v. Om Parkash and another [(1986) 4 SCC 155]; Vidyawati v. Manmohan and others (AIR 1995 SC 1653).

• The respondents and their predecessors played fraud upon the courts in the earlier proceedings, as is revealed from the documents exhibited by the petitioners along with the claim petition. However, the same was erroneously discarded by the courts below. It ought to have been noted that even if there is substantial representation, the same does not efface the right of the petitioners to raise the allegation of fraud.

• The Munsiff Court and the First Appellate Court erred in overlooking the fact that the plaintiff in O.S.No.539 of 1984, viz., the predecessor of respondents 1 and 2, had no title to the property at all. The claims and records were fraudulent as the property was part of the 'Poramboke

14

Tharisu', which was specifically revealed from the Ext.A1 document produced by the petitioners. This aspect was not even adverted to by the courts below.

• There was no document whatsoever produced either by way of assignment under the Land Assignment Act or by the process of the Land Reforms Act whereby the Government land would become private land. The revenue entries were fraudulently obtained in respect of the properties in collusion with corrupt officials and the documents claimed by the plaintiffs in O.S.No.539 of 1984 to show that they have title are only a Will and a clutch of inter se transactions amongst themselves or their family members through relinquishment deeds and gift deeds etc. The said documents would not in any manner confer or create any title upon the Government land. The courts below never gave the petitioners an opportunity to prove the above and erroneously non-suited them at the very threshold.

• The documents fraudulently created by respondents 1 and 2 as well as by their predecessors, do not bind the petitioners and they are entitled to partition the property as envisaged in law and as promised to them by their grandfather late Kodungali.

• Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. No judgment of a court can be allowed to stand if it has been obtained by fraud. Fraud is an act of deliberate

15

deception with the design of securing something by taking unfair advantage of another. Here fraud had been played by the purported Will that had been produced by the predecessors of the respondents and the inter se transfers and convenient conveyances made by the respondent's predecessors with an object to cover up the trespass committed over Government property. This amounted to fraud and it is trite that fraud unravels everything.

• Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in action. Courts below erred in overlooking the same. Reliance is placed on the dictum laid down in

State of Andhra Pradesh and another v. T.Suryachandra Rao

[(2005) 6 SCC 149].

• The judgment and decree obtained by respondents 1 and 2 and their predecessors were due to fraud played in revenue records and by fraud played on the court. The said fact was evident from the evidence/records which were presented along with the obstruction petition. The said documents were never produced before the court in any of the earlier proceedings and hence the contention of fraud could not be exposed by the predecessors of the appellant who were defending the earlier proceedings.

16

• A party who has secured a judgment by fraud should not be enabled to enjoy the fruits thereof. The said dictum applies to the respondents and to their predecessors who had played fraud and obtained the judgments leading up to the decree now sought to be executed by suppressing the pivotal fact that the land was Government land. The said fraud is now exposed by the documents produced in the EA. The courts below however overlooked the said pivotal aspect and brushed aside the documents and evidence produced. The appeal is fit to be allowed on the said count also. Reliance is placed on the dictum laid down by the Supreme Court in Hamza Haji v. State of Kerala and another (AIR 2006 SC 3028); Kishan Lal Barwa v. Sharda Saharan and another

[(2015) ILR 1 All 218].

• Reliance is placed on Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another [(1997) 3 SCC 694] and it is contended that an obstructionist who alleges to have an independent right, title and interest in the decretal property and who is admittedly not a party to the decree should not be told off the gates. Such a course will result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits.

• It is incumbent on the executing court/ Munsiff court that adjudication is conducted under Order 21 Rule 98 for determining the question of right, title or interest of the objector (petitioners). A finding is legally required to

17

be recorded in that respect. The determination of the question of the right, title, or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21 Rule 98 which is an order and a decree under Order 21 Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. The procedure prescribed therein is a complete code in itself. Therefore, the executing court was required to determine the said question. Non-compliance of the same is an error, which both the courts below overlooked. Reliance is placed on Babulal v. Raj Kumar and others (AIR 1996 SC 2050); Ved Kumari (dead) rep. Vijay Agarwal v. Municipal Corporation of Delhi [(2023) 13 SCC 651].

• The execution court failed to take note of the fact that a proceeding under Order 21 Rule 97 is to be tried like a suit. By merely conducting a hearing on the question of maintainability without going into the adjudication of disputed facts or appreciation of the documents produced by the petitioners along with their obstruction petition, the court erroneously dismissed the E.A.

11. Contentions on behalf of the respondents 1 and 2:

• The E.A. is not maintainable in law and was correctly dismissed by the Munsiff Court and the First Appellate Court.

• The E.A. is only an attempt by the petitioners to deny respondents 1 and 2 the fruits of their litigation, which was initiated by their predecessors as

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early as 1984 and diligently pursued by them through more than two rounds before this Court and the Supreme Court. The same had been finally decided in their favour, which decree they sought to execute by filing E.P.No.240 of 2022. Petitioners have made a malafide entry at that stage by filing the E.A. seeking to delay the execution and to re-agitate the whole issue all over again.

• The contention put forth by the petitioners as the very basis of their claim petition is the purported oral gift by their grandfather, late Kodungali. Under Section 123 of the Transfer of Property Act, a gift of immovable property can only be effected by a registered instrument. To be a valid gift, it must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. A gift of immovable property not satisfying the requirements of Section 123 cannot be considered to be a gift in the eye of the law. Hence the said contention based on late Kodungali's oral gift revealed and put forth in 2023 is unsustainable in law thus rendering the claim petition devoid of any feet to stand on. Reliance is placed in this respect on the dictum laid down in State of Kerala v. Oomman [1992 KHC 181].

• Judgment in S.A.No.684 of 1993 was rendered by this Court during the lifetime of the 1st defendant (Kalukurumban) who is the father of the petitioners herein. The interests of the petitioners who claim to be co- owners were thus substantially represented by all other heirs including

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their mother and brothers.

• It is settled law that the doctrine of substantial presentation promotes substantial justice based on the principle of equity, latches, and acquiescence and avoids multiplicity of proceedings. The said principle is to be applied when there is a substantial representation of common estate, either in the suit or proceedings when identical common interests are involved. When the estate or the common interest was substantially represented, the result would bind the estate and all those who had the same interest over the estate irrespective of whether they were made parties to the proceedings or not. Reliance is placed on the dictum laid down by this Court in Thayyil Gopalan v. Thayyil Madhavi [2018 (5) KHC 871].

• Petitioners attempted to allege fraud to circumvent the embargo of substantial representation. The courts below rightly rejected this attempt, noting that the contention of fraud raised is bald, unsubstantiated and unsustainable. There needs to be evidence that the decree was obtained by playing fraud or collusion and the burden would be on the person who claims it, otherwise, the liability under the doctrine of substantial representation would operate against all those who hold the same interest or identical interest with the parties to the suit or the proceedings over the estate. Reliance is placed on the dictum in Thayyil Gopalan (supra).

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• The pleadings when fraud is alleged in the petition under Order 21 Rule

97 CPC have to be specific and the nature of the fraud or collusion if any involved in the suit should be proved. Admittedly the petitioners have no contention regarding fraud or collusion between the plaintiff in the suit and the original defendants therein. The pleadings so made should be buttressed with cogent evidence. Not even prima facie evidence to satisfy fraud had been put forth by the petitioners in the claim petition. Hence its rejection was valid and proper.

• Petitioners cannot plead to improve upon the case of their predecessors, who contested the proceedings right up to the Supreme Court and lost. The documents produced by the petitioners, along with the EA, sought to plug the lacuna, if any, in the earlier litigation that was fought by their predecessors, including their father, mother, and brothers, up to the Supreme Court and two rounds before this court. In the total absence of even prima facie evidence to prove fraud, any such new evidence attempted to put through at this point of time cannot be entertained.

• Petitioners base their contentions on the purported oral promise made to them by their grandfather that they would be given a share in the property. The said contention by itself takes away the wind from the sails of the appellant's case. It is trite law that a legal heir cannot set up new or individual rights not set up by or not available to the predecessor

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who is a party to the proceedings as a defendant. Even if it is open to the court to allow a legal representative to be impleaded in his own personal capacity, in which case he should set up his own independent title. The same is not the case with the petitioners. Reliance is placed on the dictum laid down by this Court in Krishnan Sathyadas v. Lakshmikutty Amma [1990 KHC 469].

• It is trite law that a right not set up by the deceased cannot be set up by a person impleaded as legal representative alone. Even if a legal heir steps into the shoes of the original defendant, he cannot have a plea contrary to the contentions taken by the predecessor. Reliance is placed on the dictum by this court in Santha K. Keezhana Balan (died) [2022

(7) KHC 145].

• It is settled law that a claim under Order 21 Rule 97 CPC is permissible only where a right is claimed independently otherwise than by the judgment debtor. He cannot have a larger right than what was available to the judgment debtor against whom a decree had been passed after adjudication. Once a decree is passed against the predecessor and a legal representative is brought in by way of substitution to represent the deceased judgment debtor, it is not open to him to set up independent title, right or possession to resist the decree. An application filed by him under Order 21 Rule 97 CPC to resist the decree setting forth an independent right, title and possession over the decree schedule

22

property is not entertainable. Any resistance to the decree by the legal representative of the judgment debtor by setting forth a claim, which was not available to the deceased judgment debtor, whose estate or interest alone is competent to represent, cannot be gone into by the execution court. Extending the same rationale to the case at hand, the petitioners ought to have legally put forth an independent title sustainable in law. They have miserably failed in doing the same. Thus the courts below were justified in dismissing the application and appeal. Petitioners are bound by the decree passed against their predecessor and it is not open to them to set up in the execution proceedings an independent title, right, or possession over the decree-scheduled property. Reliance is placed on the dictum laid down by this Court in Alphons Thomas v. Aley and others [2009 KHC 1098].; Ajith Kumar M.R. and others v. Vasanthi Devi and others [2008 (4) KHC 818]; Nooruddin v. Dr. K.L. Anand [1995 KHC 1222]; Sukhalal v. Jacob

[2020 (1) KHC 466].

• The petitioners claimed to be in possession of the property without any substantiation. Assuming without admitting that they have possession, mere possession will not suffice in the facts of the application as they have to show a right to possession independent of the predecessors who lost their case. Reliance is placed on the dictum laid down by this court in Indu v. Finance and Investment Corporation and others

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(2024 KLT OnLine 2908).

• In Gajraj v. Sudha and others (1999 KHC 3913) Supreme Court, has held that legal representatives cannot set up new individual rights. They cannot take up a new and inconsistent plea contrary to the one taken up by the deceased. The legal representatives stand in the shoes of the deceased defendant and must accept the position adopted by their predecessor.

Discussion and findings:

12. Whether any substantial questions of law that merit consideration under Section 100 arise from the impugned judgment/order is the prime question that comes up for consideration. Before proceeding to consider the same, I think it would be apposite to examine the scope of such jurisdiction vested in this court.

13. In Chandrabhan v. Saraswati (2022 SCC OnLine SC 1273), the Supreme Court explained that to be 'substantial,' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it is concerned. It was further held in Chandrabhan (supra) as follows:

"31. The proper test for determining whether a question of law raised in the case is substantial would be, whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is

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not finally settled by this Court. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or the question raised is palpably absurd, the question would not be a substantial question of law."

14. The Apex Court in Chandrabhan's case (supra) also summarised the following principles relating to Section 100 of the CPC:

1. "An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

2. The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

3. The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where:

(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When the Court refers to "decision based on no evidence", it not only

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refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." (emphasis added)

15. Thus it is not all questions of law that would merit appreciation by admitting an R.S.A., only 'substantial questions' as explained and elaborated above would be entertained.

16. In Bhagyashree Anant Gaonkar v. Narendra [2023 KLT OnLine 1709 (SC)] after a survey of the precedents on the point, including Roop Singh v. Ram Singh [(2000) 3 SCC 708]; C.A.Sulaiman and others v. State Bank of Travancore, Alwayee and others [(2006) 6 SCC 392]; State Bank of India v. S.N.Goyal [(2008) 8 SCC 92]; Municipal Committee, Hoshiarpur

v. Punjab State Electricity Board and others [(2010) 13 SCC 216];

Umerkhan v. Bismillabi and others [(2011) 9 SCC 684]; Raghavendra Swamy Mutt v. Uttaradi Mutt [(2016) 11 SCC 235], the Supreme Court held as follows:

"It is trite that the exclusive jurisdiction of the High Court to deal with a regular second appeal is stipulated in Section 100 of the CPC, which grants power to the High Court to consider a regular Second Appeal only on a substantial question of law. This would clearly indicate that the First Appellate Court is the final court on questions of facts but only if there is any substantial question of law, a second appeal could be considered and raised by the High Court and such substantial question(s) of law ought to be answered. In fact, it is the practice and a mandatory requirement that at the time of admitting the regular second appeal, substantial question(s) of law must be framed, on the basis of which the arguments must be advanced and a decision given thereon. It is also permitted that once the

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arguments have been advanced, the court is at liberty to re- frame or frame fresh substantial questions of law and answer the same on hearing the learned counsel for the respective parties."

17. After thus having reminded myself of the cardinal principles to be borne in mind while exercising the jurisdiction vested under Section 100 of the C.P.C., I proceed to consider the contentions raised by both sides in the above

R.S.A.

18. The first substantial question sought to be raised is on the premise that the courts below erred in understanding the scope of and following the procedure envisaged in law in proceedings under Rule 97 to Rule 104 of the C.P.C. This is an aspect that is intricately connected with the question of maintainability which ought to have been satisfied by the petitioners at the very threshold. It was hence valid and proper on the part of the Munsiff Court to proceed to first consider the question of maintainability, especially so in the facts and circumstances of this case. Since the common interest of the petitioners in the property was substantially represented despite the petitioners not being impleaded in the suit and as the petitioners had not raised any allegation of fraud or collusion against their parents or siblings or the heirs of the siblings who were party to the suit, inter alia the courts below concluded that petition under Order 21 Rule 97 CPC cannot be maintained by the petitioners. On a perusal of the Order/ judgment of the courts below it is noted that there has been substantial compliance of the procedure as laid down in law. In the impugned order/judgments it had been specifically considered and

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held by the courts below that the claim petition is not maintainable and that the interests of the petitioners were substantially represented by all the other legal heirs. Detailed appreciation of the points raised on maintainability had been made and elaborate reasoning has been given for the conclusion arrived at. The Reliance placed in this respect on the dictum in Brahmdeo Chaudhary

(supra), Babulal (supra) and Ved Kumari (supra) hence cannot be countenanced. Hence it is only to be found that no substantial question of law as mandated in Chandrabhan (supra) arises on the said point.

19. The second point that has been raised so as to put forth a substantial question is that the courts below had erred in venturing into the merits and demerits of the rival contentions and disputed facts when the only issue was of maintainability. This is raised in the context of the contentions put forth by respondents 1 and 2 based on questions of maintainability, res judicata and limitation, which according to the petitioners are mixed questions of fact and law. Pointing out that no jurisdiction exists in the court to try mixed issues of law and fact as a preliminary issue, a substantial question is raised on the said count and the contention is attempted to be buttressed based on the dictum in

Salim D. Agboatwala (supra), Hareendran (supra), Taj Kerala Hotels

(supra) and Reetha John (supra). It is noted that the petitioners were given the opportunity to tender evidence in the Claim petition. They had availed it by marking documents. Documents were thus produced by both sides and the same were admitted in evidence. Nothing is discernable from the records to

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show that the Execution Court while enabling the parties to tender evidence was indulging in the limited purpose of hearing a preliminary issue. It is not seen or alleged that the Execution Court has shut out evidence or declined the prayer of the petitioners to tender more evidence. Hence, the objection raised on the course adopted by the Execution court is not sustainable. Over and above the same, it is pertinent to take note of the test laid down by the Supreme Court in Chandrabhan (supra) for determining whether a question of law raised in the case is 'substantial', it has to be looked into whether the question is settled by the highest court or the general principles to be applied in determining the question are well settled and if there is only a mere question of applying those principles, the question would not be a substantial question of law. Examined from the said point, no substantial question of law has been made out on the said count.

20. The third and fourth questions suggested as substantial questions concern the reliance placed by the courts below on the judgment and decree in O.S.No.539 of 1984 and the contention put forth is that since the petitioners were not made parties thereto, the same by no means are binding on them and the allegation of fraud as a vitiating factor is one that could be set up and established at any stage of the proceedings there being no bar of any provision of law or doctrine of law or res judicata. It is settled that the doctrine of substantial representation promotes substantial justice based on the principle of equity, latches, and acquiescence and avoids multiplicity of

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proceedings. The said principle is to be applied when there is a substantial representation of common estate, either in the suit or proceedings when identical common interests are involved. These principles are settled as seen from the dictum in Thayyil Gopalan (supra). The fifth question suggested as a substantial question relates to the courts below' erroneous understanding and application of the doctrine of substantial representation in the facts and circumstances of the case. The same does not meet the test laid down by the Supreme Court in Chandrabhan (supra) for determining whether a question of law raised in the case is 'substantial'.

21. In view of the above, I do not find that the substantial questions put forth in the R.S.A. meet the mandates laid down by the apex court in

Chandrabhan (supra). The impugned judgment does not give rise to any other substantial question of law that meets the said mandates.

22. Further, I find that there is substantial force in the contention of the counsel for respondents 1 and 2 that attempt by the petitioners to deny to his clients the fruits of their litigation, which was initiated by their predecessors as early as 1984. The attempt of the petitioners to improve upon the case of their predecessors which had been was pursued unsuccessfully right up to the Supreme Court cannot be countenanced at this point of time based on the specious plea of a purported independent right based on an alleged promise of the deceased grandfather to the granddaughters for a share in the property. The documents produced by the petitioners, along with the E.A., including

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Ext.A1 can only be seen as an attempt to plug the lacuna, if any, in the earlier litigation that was fought by their predecessors, including their father, mother, and brothers, up to the Supreme Court. In the total absence of even a prima facie evidence to prove fraud, any such new evidence attempted to put through at this point in time was not rightly entertained by the courts below.

23. The angst of the Indian litigant as pointed out by the Senior Civil Judge in the impugned judgment by quoting the reiteration of the Supreme Court in Pradeep Mehra v. Harijivan J. Jethwa (2023 KHC 6965), of the observation of the Privy Council that "the difficulties of a litigant in India begin when he has obtained a decree" is certainly not misplaced. After litigation spanning more than 40 years, there has to be a quietus to the issue. Re-agitating a matter that rests with the findings of the Supreme Court, based on the perceived existence of independent rights and on the basis of freshly unearthed evidence as also drawing on the benefit of hindsight, does not serve the ends of justice.

Conclusion:

In view of the above, there is no merit in this appeal. No substantial question arises for consideration. This Second Appeal is accordingly dismissed.

Sd/-

SYAM KUMAR V.M.

JUDGE

csl

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