In a second appeal, the High Court of Kerala dismissed the appeal in limine. The appellant failed to substantiate the claim that the mortgaged property was co-parcenary, despite the lower courts' findings.
The Second Appeal was dismissed in limine without consideration of the framed questions of law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.RAMKUMAR
TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930
RSA.No. 967 of 2008()
--------------------AS.278/2003 of SUB COURT,NEYYATTINKARA OS.232/1981 of PRL.M.C.,NEYYATTINKARA
APPELLANT/1ST DEFENDANT:
RAMAN NADAR, VELAYUDHAN NADAR, AGED 69, KALPALLICHALVILAKATHU VADAKKEPUTHEN VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM.
BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL
RESPONDENT(S): RESPONDENTS/PLAINTIFFS/2ND DEFENDANT:
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V.RAMKUMAR,J.
DATED: 2-12-2008
JUDGMENT
The first defendant in O.S. No. 232 of 1981 on the file of the Principal Munsiff's Court, Neyyattinkara is the appellant in this Second Appeal. The said suit was one for redemption of Ext.A1 mortgage and for putting up the eastern boundary of the plaint schedule item No. 2.
follows:-
Plaint schedule item No. 1 belonged to Raman Nadar the father of the plaintiff and the defendant. The plaintiff and the defendant are the legal representatives of the said Raman Nadar. Plaintiff filed O.S. 135/73 for partition and separate possession of her share over the plaint schedule properties and other properties. A final decree for partition had been passed in the said suit as evidenced by Ext.A2 certified copy. The said final decree has been modified by the High Court in
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C.M.A. 122 of 1996. Specific plots were allotted to the plaintiff as per Ext.A2 final decree. After Ext.A2 the plaintiff filed application to transpose the second plaintiff as additional second plaintiff and for amendment. Plaint schedule item No. 2 is plot A, A1,A2, A3, D,E in Ext.C1 (E) plan which is item No. 5 in Ext.A2. As the defendant was allotted property on the eastern side of item No. 2 of Ext.A2 the plaintiff wants the boundary of plaint schedule item No. 2 to be put up.
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the plaintiff to pay her contribution to the mortgage money, that the suit filed in the year 1981 by the non-redeeming comortgagor for payment of the proportionate share of mortgage money to the first defendant was within time, that the present suit was not hit by Order 2 R. 2 C.P.C. Since redemption of the mortgage was not a necessary relief which should have been prayed for by the plaintiff in O.S. 135 of 1973 and that the prayer for putting up a boundary for plaint schedule item No. 2 along the line A1, A2 and A3 was not justified. The suit was, accordingly, decreed in part directing the plaintiff to pay Rs. 28.15 to first defendant being the proportionate mortgage money within a period of three months. However, the prayer for putting up the boundary was not granted in view of Ext.A2 decree. The suit was thus partly decreed. On appeal by the first defendant the lower appellate court has confirmed the decree and judgment as per judgment dated 2-4-2008 in A.S. 278 of 2003. Hence, this Second Appeal.
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i) Whether the plaintiff is precluded from seeking redemption of plaint schedule item No.1 property in the absence of pleading and proof that the share allotted to her is comprised of mortgaged property ?
ii) Whether the sole co-parcener under Mithakshara Law with whom property devolved by survivorship on the death of other Col-parcener can be equated with a co-owner with whom right of partition devolved ?
iii) Whether the sole surviving co-parcener who redeemed a portion of co-parcenary property outstanding on mortgage is an assignee mortgages in relation to other co-owners of property ?
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schedule item No. 1 was co-parcenary property of Raman Nadar. In fact, a perusal of the uncertified copy of the judgment dated 27-8-1979 in A.S. 714 and 721 of 1977 will go to show that in O.S. 135 of 1973 there were 9 items in the plaint A schedule and one item in plaint B schedule. It has not been substantiated by the appellant that any of the suit items in O.S. 135 of 1973 is covered by the present suit. As mentioned earlier except raising the contention that the present property was co-parcenary property, the appellant did not produce any material either in the form of judgment or decree to substantiate the said plea. He did not even mount the witness box to give evidence in support of his contention. The courts below have rightly held that the appellant has failed to show that the property was coparcinary property of Raman Nadar. The absence of an issue regarding this question need not deter the court from entering a finding on the question since the parties went to trial having in mind the said contention which was very much agitated before both the courts. It is even re-iterated before this Court. Hence, I see no ground to interfere with the judgments and decree passed by the trial court. No question of law, much less, any
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substantial question of law arises for consideration in this case. The questions of law formulated in the memorandaum of appeal also do not arise for consideration in this Second Appeal which is dismissed in limine.
Dated this the 2nd day of December 2008.
V.RAMKUMAR, JUDGE
ani
3 issues framed by the court
Whether the plaintiff is precluded from seeking redemption in the absence of pleading and proof that her share comprised mortgaged property?
Whether a sole co-parcener under Mithakshara Law who inherits by survivorship can be equated with a co-owner with whom right of partition devolves?
Whether a sole surviving co-parcener who redeemed part of co-parcenary property on mortgage becomes an assignee mortgagee of other co-owners?
RAMAN NADAR
VELAYUDHAN NADAR
JANAKI KARTHI
JANAKI LEKSHMI
V.RAMKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
