Dismissed

K.a.Viswanathan v. Thanka

Kerala HC6 Nov 2009CRP/594/2009

Case brief

AI extract

What is this about?

The revision petition challenging an order appointing a commissioner for property partition was dismissed. The court held that challenges regarding abatement and impleadment must be raised before the preliminary decree, not in final decree proceedings. The decree's omission regarding a party's ranking was rectified by the lower court, validating its order.

What did the court decide?

Revision petition dismissed.

K.a.Viswanathan Vs Thanka — Partition | Kerala HC (2009)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT :

¶3

THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN

¶4

FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931

¶5

CRP.No. 594 of 2009()

¶6

--------------------AGAINST THE ORDER DATED 22/07/2009 IN IA.4265/2007 IN OS.58/1991 of PRINCIPAL SUB COURT, PALAKKAD

¶7

REVN. PETITIONER(S)/RESPONDENTS NO.2 AND 6/DEFENDANTS 2 AND 6:

¶8

--------------------------------

¶9

1. K.A.VISWANATHAN,S/O.APPU,NEAR DHONI BULL STATION, PUDUPARIYARAM AMSOM,PUDUPARIYARAM VILLAGE,PALAKKAD TALUK.

¶10

2. SOWDAMINI,W/O.K.A.VISWANATHAN, PUTHUPARIYARAM AMSOM,DHONI,CHOLODE, PALAKKAD TALUK.

¶11

BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P

¶12

RESPONDENT(S)/PETITIONER & RESPONDENTS NO.1, 3 TO 5 & 7 TO 26/ SUPPL.2ND PLAINTIFF & DEFENDANTS NO.1, 3 TO 5, 7 AND 9 TO 28:

¶13

-------------------------

¶14

1. THANKA,W/O.RAMAN MARUTHAMPADOM, KAVASSERY AMSOM,DESOM,ALATHUR TALUK.

¶15

2. RAMAKRISHNAN.K.A,S/O.APPU,KADAMBADIPURA, MUTTIKULANGARA,PUDUPARIYARAM AMSOM,PALAKKAD TALUK.

¶16

3. SUKUMARAN,S/O.MADHAVAN,KUMMANKOTTIL, MUNDUR,PALAKKAD DISTRICT.

¶17

4. LAKSHMI,W/O.CHANDRASEKHARAN, MARUTHAMPALAM KALAM,PANAYUR, PALAKKAD DISTRICT.

¶18

5. KAMALAKSHI, W/O.KELUKUTTY, KINASSERY AMSOM,MUTHUKATTIL,PALAKKAD TALUK.

¶19

6. T.K.RAMANKUTTY,S/O.KUTTAN, KARINGANNIKALAM,MUTTIKULANGARA PUTHUPARIYARAM AMSOM,PALAKKAD TALUK.

¶20

7. T.R.APPU,S/O.RAMANKUTTY,MUTTIKULANGARA, KARINGANNIKALAM,PUTHUPARIYARAM AMSOM, PALAKKAD DISTRICT.

¶21

CRP.594/09

¶22

8. VALSALA,W/O.GANGADHARAN,MUTTIKULANAGARA, PUTHUPARIYARAM,AMSOM,PALAKKAD TALUK.

¶23

9. SUDEEP,S/O.VALSALA,MUTTIKULANGARA, PUDUPARIYARAM AMSOM,PALAKKAD TALUK.

¶24

10. SUJITH,S/O.VALSALA,RESIDING AT -DO11. AJITH,S/O.VALSALA,RESIDING AT -DO12. SMITHA,D/O.LATE GANGADHARAN, MUTTIKULANAGARA,PUDUPARIYARAM,AMSOM, PALAKKAD TALUK. 13. SREEJA,D/O.GANGADHARAN, RESIDING AT -DO-

¶25

14. CHENTHAMARAKSHI,D/O.LATE.MADHAVAN, KOOMANKODEVEEDU,MUNDUR AMSOM,PALAKKAD TALUK.

¶26

15. SAKUNTHALA,D/O.LATE MADHAVAN, RESIDING AT -DO16. MADHAVIKUTTY,D/O.LATE MADHAVAN, RESIDING AT -DO17. SAROJINI,D/O.MADHAVAN, RESIDING AT -DO18. SUKUMARAN,S/O.MADHAVAN, RESIDING AT -DO19. CHANDRAN,S/O.LATE MADHAVAN, RESIDING AT -DO20. VIJAYAN,D/O.LATE MADHAVAN, RESIDING AT -DO21. PADMAVATHI,D/O.LATE MADHAVAN, RESIDING AT -DO22. VENU,S/O.LATE MADHAVAN, RESIDING AT -DO-

¶27

23. KANAKALATHA, D/O.T.K.RAMANKUTTY,KARINGANNIKULAM, MUTTIKULANGARA,PUDUPARIYARAM AMSOM, PALAKKAD TALUK.

¶28

24. VIJAYARAGHAVAN,S/O.T.K.RAMANKUTTY, KARIKANNIKALAM,MUTTIKULANGARA,PUDUPARIYARAM AMSOM, PALAKKAD TALUK.

¶29

CRP.594/09

¶30

25. DEVADAS,S/O.T.K.RAMANKUTTY, RESIDING AT -DO-

¶31

THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶32

S.S.SATHEESACHANDRAN, J.

¶33

C.R.P.NO.594 OF 2009 ()

¶34

Dated this the 6^th day of November, 2009

¶35

O R D E R

¶36

The petitioners are the respondents 2 and 6 in

¶37

I.A.No.4265 of 2007 in O.S.No.58 of 1991 on the file of the Sub Court, Palakkad. The above suit is one for partition and after passing of the preliminary decree under the I.A. mentioned above, the final decree proceedings are in progress. In the final decree proceedings, the court below has passed an order directing the appointment of a Commissioner to divide the properties in tune with the preliminary decree to allot the properties to the sharers. That order has been passed negativing the objections raised by the present respondents that no share had been allotted under the preliminary decree in favour of the additional 2^nd plaintiff. Propriety and correctness of the order so passed by the court below is challenged in the revision.

¶38

CRP.594/2009

¶39

¶40

According to the learned counsel for the petitioners, the preliminary decree passed in the suit is null and void because some of the legal representatives of a party, who were impleaded before passing the decree had not been brought on record within the prescribed period and their impleadment was made without seeking for setting aside the abatement caused on the death of the deceased party. Similarly, according to the counsel, the preliminary decree does not provide for any allotment of share to the petitioner in the I.A., who had been impleaded as additional 6^th plaintiff in the suit. So much so, on both these counts, the final decree application moved by the petitioner in the I.A. was not maintainable and it should have been dismissed by the court below. But, negativing the objections canvassed by the petitioners, the court below has appointed a Commissioner for division of the properties under the impugned order, and, according to the counsel, it is liable to be set aside invoking the revisional jurisdiction vested with this Court.

¶41

CRP.594/2009 3

¶42

Perusing the order passed by the court below with reference to the submissions made by the learned counsel for the petitioners, I find no interference in exercise of the revisional jurisdiction is called for. Whatever be the challenges canvassed by the petitioners with respect to abatement consequent to the delay in bringing on record the legal heirs of a party, who passed away, before the passing of the preliminary decree, such challenges should have been canvassed before the passing of the preliminary decree and not in the final decree proceedings continued after the preliminary decree. Challenge which was not taken before the passing of the preliminary decree with respect to impleadment of any of the parties consequent to the death of a party to the suit, cannot be allowed to be agitated in the final decree proceedings as rendering the preliminary decree null and void. Preliminary decree was also not challenged on that ground by way of appeal or any other process of law. It is too late in the day for these petitioners to raise the question of abatement in respect of impleadment of legal representatives of the deceased persons in preliminary decree proceedings for

¶43

CRP.594/2009 4

¶44

the reason of not moving for setting aside the abatement in seeking impleadment of the legal representatives, in the final decree proceedings to challenge the preliminary decree as void. Second ground canvassed by the petitioners that no share was allotted in the suit property to the petitioner in the I.A. and so much so, the application at her instance for passing of the final decree is not entertainable is also found to be meritless. The order passed by the court below would show that on the death of the plaintiff, his legal representatives were impleaded as supplemental 2^nd and 5^th plaintiffs, but, they were not interested in prosecuting the case. Suit was also dismissed for default. The 6^th defendant in the suit, petitioner in the I.A. giving rise to the order impugned in the revision, moved a restoration application seeking her transposition as the 6^th plaintiff. That was allowed by the court. That order was challenged in revision by some of the defendants and the additional plaintiffs 2 to 5 before this Court. That revision was disposed transposing additional plaintiffs 2 to 5 as defendants in the suit and the additional 6^th plaintiff was later given a new ranking as supplemental

¶45

CRP.594/2009 5

¶46

2^nd plaintiff. In the decree, additional 6^th plaintiff has not been shown as the additional 2^nd plaintiff after transposition of supplemental plaintiffs 2 to 5 as defendants as per the orders of this Court is banked upon by the revision petitioners, some of the defendants in the suit, to contend that the petitioner in the I.A. was not allotted any share in the preliminary decree. The decree shows that supplemental 2^nd plaintiff has been allotted¹ /8th share in the suit property. In the cause title of the decree, there is an omission to state that the additional 6^th plaintiff on transposition of the supplemental plaintiffs 2 to 5 as additional defendants in the suit was given the rank of additional 2^nd plaintiff, had been canvassed to raise the challenge that the petitioner in the I.A. (additional 2^nd plaintiff) has not been allotted any share. The court below, taking note of the facts and circumstances involved and also observing it was only an omission in the decree to state that the additional 2^nd plaintiff had been ranked as the additional 2^nd plaintiff (petitioner in the I.A.) overruled the objections of the revision petitioners, the 2^nd and 6^th respondents in the final decree applications, I find that the order passed by the court below is

¶47

CRP.594/2009

¶48

¶49

proper, valid and correct and there is no merit in the objections put forth by these revision petitioners challenging the maintainability of the final decree application moved by the additional 2^nd plaintiff. Revision lacks merit, and it is dismissed.

¶50

S.S.SATHEESACHANDRAN JUDGE

¶51

prp

K.a.Viswanathan v. Thanka

Case brief

What is this about?

What did the court decide?

K.a.Viswanathan v. Thanka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

A.Shya Ummal Abdul Azeez Vs a.Ashya Ummal Pathummal

Sunitha Rani Vs Sreekanth S.Nair

Shanmughan Vs Lakshmi and Others

Omanakuttan Vs Ramachandran Pilla & Others

Sheaine.P. Vs Ravi

Parukutty Ittiyamma Vs Sreekantan Nair