Dismissed

Thankappan v. Chandramathy

Kerala HC3 Dec 2010OP (FC)/988/2010

Case brief

AI extract

What is this about?

This is a revision petition challenging a Family Court order appointing a Commissioner to effect partition by metes and bounds before a preliminary decree on rights. The High Court refused to invoke Article 227 jurisdiction despite the procedural irregularity.

What did the court decide?

The O.P.(FC) No.988 of 2010 seeking quashing of the Family Court order appointing a Commissioner is dismissed.

Thankappan Vs Chandramathy — Property and Title | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932

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OP (FC).No. 988 of 2010(R) -------------------------OP.249/2008 of FAMILY COURT, THODUPUZHA ....................

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PETITIONER:

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THANKAPPAN, AGED 65 YEARS, S/O.PADMANABHAN, KUNNUMPURATH HOUSE, NADUMATTAM BHAGAM, VANDAMATTAM, KODIKKULAM VILLAGE, IDUKKI DISTRICT.

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BY ADV. SRI.C.P.PEETHAMBARAN

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RESPONDENT(S): ---------------

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CHANDRAMATHY, PUKKUMPURATH HOUSE, NADUMATTAM BHAGAM, VANDAMATTAM, KODIKKULAM VILLAGE, IDUKKI DISTRICT.

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R. BASANT & K. SURENDRA MOHAN, JJ.

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O.P.(FC) No.988 of 2010-R

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Dated this the 3^rd day of December, 2010

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JUDGMENT

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Basant,J.

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The parties in this O.P.(FC) are spouses. There is a property acquired during coverture in the joint names of both the parties. There is acrimony in the relationship. The wife has sued for partition. The husband has set up a case that the property exclusively belongs to him and the inclusion of her name in the document of acquisition does not really confer any right on her. The controversy is rife. It has not been resolved. 2. At this stage, the court below appears to have accepted the request of the wife to depute a Commissioner to ascertain how the partition can be effected by metes and bounds. This O.P.(FC) is against the orders passed by the Family Court. A copy of the order is produced as Ext.P6.

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There could not possibly be any doubt that ideally only after the adjudication is over about the existence of the right for partition and the passing of a preliminary decree alone the court need to proceed to the next stage of attempting to effect a partition by metes and bounds. But the question is not whether

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O.P.(FC) No.988 of 2010 -: 2 :-

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the ideal course has been followed or not. The short question here is whether the extraordinary constitutional jurisdiction under Art.227 of the Constitution of superintendence and control over the subordinate courts vested in this Court must be invoked and exercised.

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Failure of justice, miscarriage of justice etc., are not vices which we can discover or invent in the impugned order. Though ideally a better course could have been followed, we are not persuaded to agree that in the facts and circumstances of this case the extraordinary constitutional jurisdiction under Art.227 of the Constitution can or need be invoked. We do note that commission is taken out at the expenses of the respondent.

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This O.P.(FC) is, in these circumstances, dismissed. We may hasten to observe that the dismissal of this O.P.(FC) will not, in any way, fetter the rights of the petitioner, if any, under law, to challenge the final order in O.P.No.249/08.

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Sd/K. SURENDRA MOHAN (Judge)

Nan/

P.S. to Judge

//true copy//

O.P.(FC) No.988 of 2010 -: 3 :-

Thankappan v. Chandramathy

Case brief

What is this about?

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Thankappan v. Chandramathy

Case brief

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