The appeal against an ex parte decree is maintainable despite prior dismissal of a set-aside application; female heirs under Hindu Mitakshara Law do not have rights to coparcenary property.

Headnote:(A) Code of Civil Procedure, 1908 - Sections 96(2) and Order 9 Rule 13 - Preliminary decree and final decree in partition suit - Appeal against ex parte decree maintainable despite dismissal of application to set aside - Female heirs under Hindu Mitakshara Law not entitled to share in coparcenary property - Preliminary decree set aside for lack of inquiry by the Trial Court regarding plaintiffs' claims. (Paras 10-19)

(B) Legal principles regarding appeals from ex parte decrees and the status of female heirs in Hindu Mitakshara Law were discussed, highlighting that plaintiffs cannot claim shares in coparcenary property without proper legal standing. (Paras 10-12)

(C) The main issues included the maintainability of the appeal against an ex parte decree, the entitlement of female heirs to coparcenary property, and the legitimacy of the preliminary decree. (Paras 10-14)

Findings of Court:
The Court found that the preliminary decree was unsustainable as it did not reflect proper consideration of legal standards and the rights of the parties involved. (Paras 12-19)

Result: Appeals allowed, setting aside the impugned judgments and decrees.

JUDGMENT

[RFA Nos.81/2013, 200/2014 & OPC 1718/2015]

1. Since the above three cases relate to O.S.No.787/1994 on the files of the First Additional Sub Court, Kozhikode, they are disposed by a common judgment.

2. R.F.A.No.81/2013 is filed by the legal heirs of the second defendant in O.S.No.787/1994 challenging the Preliminary Decree dated 19.11.1997 passed by the Trial Court.

3. R.F.A.No.200/2014 is filed by the very same persons who were impleaded as additional respondents 27 & 28 in the final decree proceedings in O.S.No.787/1994 challenging the Order dated 28.09.2013 of the Trial Court passing final decree in O.S.No.787/1994.

4. O.P.(C).No.1718/2015 is filed by the second appellant in the above appeals challenging Ext.P11 order produced therein dated 28.11.2014 in I.A.No.3451/2014 in O.S.No.426/2002, by which his prayer for receiving his Written Statement filed after attaining majority, is dismissed by the Trial Court. O.S.No.426/2002 was filed by four assignees of parts of the plaint schedule properties in O.S.No.787/1994 seeking a declaration that the judgment and decree passed in O.S.No.787/1994 are not valid, binding, and enforceable against the plaintiffs or the plaint schedule property therein. The petitioner in O.P(C) was the 30^th defendant in O.S.No.426/2002. The mother of the 30^th defendant had filed a Written Statement for him as guardian while he was a minor. On attaining majority during the pendency of O.S.No.426/2002, he filed I.A.No.3451/2014 with a prayer to receive his Written Statement on the ground that the Written Statement filed for him by his mother does not protect his interest. The said O.P.(C) was admitted on 17.07.2015 and the further proceedings in O.S.No.426/2002 is stayed as per interim order and the same is still in force.

5. I heard the learned Senior Counsel Sri. T. Sethumadhavan, instructed by Adv. Sri.K.Jayesh Mohankumar for the appellants in the Appeals and the petitioner in the O.P.(C), the learned Senior Counsel S.V. Balakrishna Iyer, instructed by Adv. Sri.P.B.Subramaniam who appeared for the third respondent in the Appeals and the 7^th respondent in the O.P(C) and Adv. Sri.A. Balagopal who appeared for the first and second respondents in the Appeals and the respondents 5 & 6 in the O.P.(C).

6. The Preliminary Decree dated 19.11.1997 challenged in R.F.A.No.81/2013 is an ex parte decree. As per the preliminary decree, the plaintiffs are entitled to get 12/30 shares in the plaint schedule properties, and the mesne profits are to be considered at the final decree stage. Six items of properties are sought to be partitioned in the suit. The plaintiffs are the daughters of the 1^st defendant. As per the plaint averments the properties belonged to Narayanankutty, who is their paternal grandfather.

7. The learned Senior Counsel for the appellants contended that even going by the averments in the plaint itself the decree should not have been granted by the Trial Court as the specific averment in the plaint is that the parties to the suit are following Hindu Mitakshara Law. As per Hindu Mitakshara Law, female members are not entitled to get any share in the coparcenary property. O.S.No.787/1994 was filed with the malafide intention to unsettle the preliminary decree dated 23.12.1971 in O.S.No.66/1968 for partitioning the very same six items of properties belonging to the said Narayanankutty. O.S.No.66/1968 is filed by one of the daughters of Narayanankutty for partition, and as per the preliminary decree, the sons of Narayanankutty were allotted 8/24 shares each, and each of the daughters was allotted 1/24 share. The sons of Narayanankutty are the defendants 1 & 2 in O.S.No.787/1994. The second defendant died on 14.02.1999 subsequent to the preliminary decree in O.S.No.787/1994. Since the female members of the family are not entitled to get any share in the Hindu Mitakshara Coparcenary property, the suit ought to have been dismissed by the Trial Court. The Trial Court decreed the suit, without conducting a

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The appeal against an ex parte decree is maintainable despite prior dismissal of a set-aside application; female heirs under Hindu Mitakshara Law do not have rights to coparcenary property.

Cases Referred (4)