Revision petition challenging dismissal of review application in partition suit held. Court below erred in disallowing non-parties to review without separate heirship proceeding. Issue of fraud allows heirship to be adjudicated within review. Decree set aside and remanded.
Impugned order set aside and I.A No.1611/2007 remanded to court below for reconsideration.
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.CHITAMBARESH
TUESDAY, THE 4TH DAY OF SEPTEMBER 2012/13TH BHADRA 1934
CRP.No. 200 of 2009 ( )
OS.NO.33/1957 of SUB COURT, TIRUR
REVISION PETITIONER(S)/PETITIONERS
1. MUHAMMAD, S/O.AAMBALATHVEETIL KUNNATHODATHU MUHAMEDUNNI, AYIROOR AMSOM DESOM, PONNANI TALUK, MALAPPURAM DISTRICT.
2. MAMMOOTTY,
BY ADVS.SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH
RESPONDENT(S):
1. PATTARUMADATHIL BAPPU (LATE)
2. MUHAMMED, S/O.PATTARUMADATHIL BAPPU, PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK, MALAPPURAM DISTRICT.
3. SAINUDHEEN (LATE)
4. KHADEEJA, D/O.PATTARUMADATHIL BAPPU, PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK, MALAPPURAM DISTRICT.
5. KUNHOOSA, S/O. PATTARUMADATHIL BAPPU, PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK, MALAPPURAM DISTRICT.
6. ABUTTY, S/O. PATTARUMADATHIL BAPPU, PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK, MALAPPURAM DISTRICT.
7. FATHIMA, D/O.PATTARUMADATHIL BAPPU, PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK, MALAPPURAM DISTRICT.
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CRP.NO.200/2009
8. SAFIYA, D/O.PATTARUMADATHIL BAPPU, PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK, MALAPPURAM DISTRICT.
9. SULAIKHA, W/O.CHEKKU MOULAVI, D/O.AMBALATHUVEETTIL MUHAMMEDUNNI, AMBALATHUVEETTIL HOUSE, AYIROOR P.O.,PONNANI TALUK, MALAPPURAM DISTRICT.
10. SHEREEFA,
11. AFSA,D/O.AMBALATHUVEETTIL MUHAMMEDUNNI, AMBALATHUVEETTIL HOUSE, AYIROOR P.O.,PONNANI TALUK, MALAPPURAM DISTRICT.
12. SANNIYA,D/O.AMBALATHUVEETTIL MUHAMMEDUNNI,
13. ABDUL MAJEED,D/O.AMBALATHUVEETTIL MUHAMMEDUNNI, AMBALATHUVEETTIL HOUSE, AYIROOR P.O.,PONNANI TALUK, MALAPPURAM DISTRICT.
14. KAPPATTAKATH KONDATH BAVA (LATE)
15. KAPPATTAKATH KONDATH PATHUMMU,
16. MARIYAMBEEVI, W/O.UMMER,
17. MUHAMMEDUNNI,
18. AYISSUMMU, W/O.KARUPPAN VEETTIL
19. BASHEER,
20. ARIFA,
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21. ASKAR, S/O. KAPPATTAKATH KONDATH BAVA,AYIROOR, PERUMBADAPPU P.O.,PONNANI TALUK,MALAPPURAM DISTRICT
22. SAFIYA,
W/O.POOLAMTHARAKKAL USMAN, D/O. KAPPATTAKATH KONDATH BAVA,AYIROOR, PERUMBADAPPU P.O.,PONNANI TALUK,MALAPPURAM DISTRICT
23. SHAHANAJ BEEGAM, W/O.PATTARUMADATHIL SAINUDHEEN, AYIROOR P.O., PONNANI TALUK,MALAPPURAM DISTRICT
24. THAJUDEEN,
25. SHAMSUDHEEN,
26. SIRAJUDHEEN, S/O. PATTARUMADATHIL SAINUDHEEN, AYIROOR P.O., PONNANI TALUK,MALAPPURAM DISTRICT
BY ADV. SRI.P.CHANDRASEKHAR
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
V.CHITAMBARESH,J.
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C.R.P No.200 of 2009
= = = = = = = = = = = == = = = = Dated this the 4th day of September, 2012
O R D E R
The petitioners claimed to be the legal heirs of one Muhammedunni who was one of the plaintiffs in a suit for partition as O.S No.33/1957 on the file of the Court of the Subordinate Judge of Tirur. It appears that Muhammedunni died pending final decree proceedings and his brother and sister were recorded as his legal heirs on the basis of a memo filed by another plaintiff. The petitioners who later knew about the passing of the final decree for partition behind their back filed an application (I.A No.1611/2007) to review the final decree for partition. The court below has by the order impugned dismissed the application for review primarily for two reasons and they are:
i) The petitioners are not parties to the decree and hence they cannot maintain an application for review.
ii) The petitioners have to establish their status as the legal heirs of Muhammedunni in independent proceedings .
C.R.P No.200 of 2009 2
grievous error in dismissing the application for review on the reasons stated above. The petitioners who claimed to be the legal heirs of one of the plaintiffs are certainly entitled to maintain the application for review under Order XLVII Rule 1 read with Section 114 by virtue of Section 146 of the Code of Civil Procedure. The petitioners cannot by any stretch of imagination be termed as strangers and cannot be non suited on that score.
C.R.P No.200 of 2009 3
card and admission register to establish that they are the legal heirs of Muhammedunni. The petitioners are also eager to adduce oral evidence to establish their status as the legal heirs of Muhammedunni. Respondent Nos. 5 and 6 on the other hand assert that the petitioners are not the legal heirs of Muhammedunni as claimed and that Muhammedunni is a familiar name at Ponnani. Whether the petitioners are really the legal heirs of Muhammedunni or not has to be considered on the basis of oral and documentary evidence dependant on which the application for review has to be reconsidered.
The Civil Revision Petition is disposed of as above. No costs.
V.CHITAMBARESH. JUDGE
smm
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C.R.P No.200 of 2009 5
3 issues framed by the court
Whether legal heirs excluded from partition decree can maintain a review application without establishing heirship in independent proceedings.
Whether dismissal of review application on grounds of non-maintainability and lack of standing constitutes a grievous error warranting High Court intervention.
Whether question of heirship needed to adjudicate fraud in passing of decree should be determined in review application rather than separate suit.
2 provisions across 2 enactments
MUHAMMAD another legal heirs
MAMMOOTTY another legal heirs
MUHAMMED sons/daughters of Pattarumadathil Bappu
SAFIYA daughter of Pattarumadathil Bappu
KHADEEJA daughter of Pattarumadathil Bappu
SAINUDHEEN late deceased of Pattarumadathil Bappu
V. CHITAMBARESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
