Remanded

Saidukunju v. Nassar

Kerala HC10 Jul 2012RSA/1127/2011

Case brief

AI extract

What is this about?

The High Court held that the first appellate court erred in granting a share to the first respondent who did not file an independent appeal or cross-objection against the trial court's decree dismissing his claim. The second appeal was allowed only by way of remand to the first appellate court for a fresh decision.

What did the court decide?

The judgment and decree of the first appellate court in A.S. No.153 of 2009 are set aside and the matter remitted for a fresh decision.

Saidukunju Vs Nassar — Succession and Inheritance | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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TUESDAY, THE 10TH DAY OF JULY 2012/19TH ASHADHA 1934

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RSA.NO. 1127 OF 2011 (A)

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AS.153/2009 OF SIXTH ADDITIONAL DISTRICT COURT, ERNAKULAM OS.127/2006 OF SUB COURT, MUVATTUPUZHA

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APPELLANT(S)/APPELLANT/1ST DEFENDANT:

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SAIDUKUNJU

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AGED 58, PARACKAL HOUSE, KUROOR KARA KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK.

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BY ADV. SRI.K.C.CHARLES

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RESPONDENT(S)/RESPONDENTS/PLAINTIFFS AND 2ND DEFENDANT:

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1. NASSAR PARACKAL HOUSE, THANKALAM KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK.

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2. HAMEED, S/O.LATE PAREETH, AGED 60, PARACKAL HOUSE, THANKALAM KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK.

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3. NABEESA, W/O.MYTHEEN, AGED 74, KOOTTUNKAL, PAREEKANNI KARA, KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK.

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4. MARIYUMMA, W/O.ALI, AGED 68, NEENALI VEEDU, VALLAM KARA, PERUMBAVUR VILLAGE KUNNATHUNADU TALUK.

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5. SAINABA, W/O.MYTHEEN, AGED 65, MANNOOPARAMBIL, VENGOLA KARA, VENGOLA VILLAGE KUNNATHUNADU TALUK.

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R.S.A. No.1127 of 2011

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6. AMINA, W/O.MOHAMMED, AGED 62, THENNALI VEETTIL, ELAMPRA KARA, ERAMALLOOR VILLAGE, KOTHAMANGALAM TALUK.

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BY ADV. SRI.M.S.UNNIKRISHNAN ) BY ADV. SMT.JAYASREE MANOJ ) BY ADV. SRI.A.C.THOMAS ADHIKARAM ) R1 TO R6

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No.1127 of 2011

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====================================

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Dated this the 10^th day of July, 2012

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J U D G M E N T

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Heard. Admit.

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The following substantial questions of law are framed for a decision.

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(i) Whether Ext.A1, Will bequeathing the plaint schedule property to the 1^st respondent who is a non-heir and to heirs, i.e., appellant and other respondents equally is valid, unless consented by the legal heirs of Pathumma?

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(ii) Whether in the facts and circumstances of the case, is the trial court's or that of the lower appellate court's finding as to the validity of Ext.A1, Will correct according to the Mahomedan Law?

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(iii) Whether courts below have allotted the shares of the plaintiffs and the defendants in accordance with the Mahomedan Law?

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R.S.A. No.1127 of 2011

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(iv) Whether in the absence of an appeal or cross objection the first appellate court was right in reversing the decree of the trial court to the extent it concerned the first respondent-plaintiff.

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Respondents appear through counsel.

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In view of the manner in which I propose to decide this Second Appeal it is not necessary to call for the lower court records.

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Second Appeal arises from the judgment and decree of learned Sixth Additional District Judge, Ernakulam in A.S. No.153 2009 modifying the judgment and decree of learned Sub Judge, Muvattupuzha in O.S. No.127 of 2006.

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The suit is for partition of the properties which belonged to the late Pathumma, the grand mother of the first plaintiff and mother of plaintiffs 2 to 5 and the defendants. She executed Will No.5 of 1996 dated 22.01.1996 bequeathing her properties to the plaintiffs and defendants equally. The said Pathumma died on 17.05.1999.

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Appellant-1^st defendant denied the execution of Will No.5 of 1996. He claimed that Pathumma was bed ridden for

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R.S.A. No.1127 of 2011

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about 4 years before her death and was in a disturbed mind at the time the Will was allegedly executed. It is contended that the said Will is a forged document. He also contended that Pathumma had orally gifted the suit property to him and he made improvements in the said property. A further contention he raised is that the bequest in favour of first respondent is not valid.

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The trial court held that since first respondent being the grand son of Pathumma (son of the predeceased son) is not a heir and hence in the absence of consent of all heirs for the bequest in his favour, the bequest as per Will No.5 of 1996 in favour of the 1^st respondent is not valid. Accordingly learned Sub Judge denied share to the 1^st respondent and the property was ordered to be partitioned among plaintiffs 2 to 5 and defendants.

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First respondent challenged that judgment and decree in the first appellate court. First appellate court was of the view that since the 1^st respondent is not a heir of Pathumma, consent of other heirs is not necessary for a bequest in favour of a nonheir. Reliance was placed on Section 117 of the Principles of Mahomedan Law to hold so. Accordingly it was held that 1^st respondent is entitled to share upto 1/3^rd and as per the Will

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R.S.A. No.1127 of 2011

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what is bequeathed to him is only 1/7^th share, he is entitled to that share. Shares were allotted to plaintiffs 2 to 5 and defendants also. That judgment and decree are under challenge in this Second Appeal.

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Learned counsel for the appellant contends that as regards the oral gift, trial court had not raised any issue and the appellant was prejudiced in that he was not able to adduce evidence. It is contended that the said point though raised in the first appellate court was not given serious consideration. The further argument the learned counsel advanced is that Sec.117 of the Mahomedan Law will apply only to Hanafi Law applicable to the Sunnis, but there is no evidence to show that the parties hereto are Sunnis and hence the first appellate court was not right in applying Sec.117 of the Mahomedan Law. Lastly it is argued by the learned counsel that the trial court having dismissed the suit as against the 1^st respondent in the absence of any appeal or cross objection, the first appellate court was not right in reversing that part of the judgment and decree of the trial court and allotting share to the 1^st respondent.

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Learned counsel for respondents contended that though no specific issue regarding oral gift was raised, no

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R.S.A. No.1127 of 2011

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request was made by the appellant in the trial court to frame an additional issue regarding that for which the trial court had ample power. Though in cross-examination appellant has referred to the alleged oral gift but was not able to establish the same. The appellant cannot be said to be prejudiced by the non-framing of an issue regarding the oral gift. Hence that plea cannot be allowed to be raised in the Second Appeal.

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So far as the application of Sec.117 of the Mahomedan Law is concerned, according to the learned for respondents counsel Indian Muslims belong to Sunni group and hence the Hanafi Law would apply. If that be so, Sec.117 of the Mahomedan Law would apply and as Illustration (aa) to the said provision reveals, in the matter of bequest to a non-heir the consent of other heirs is not required.

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As regards the first appellate court allowing share to the 1^st respondent is concerned it is argued that to do complete justice between the parties it was within the power of the first appellate court to invoke Rule 33 of Order XLI of the Code of Civil Procedure (for short, “the Code”) and reverse finding of the trial court as regards entitlement of 1^st respondent.

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Since I am of the view that this appeal could be

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R.S.A. No.1127 of 2011

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disposed of on the last argument advanced by learned counsel for the appellant, it is not necessary for me to refer to the other arguments advanced by the learned counsel.

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It is seen from the judgment and decree of the trial court that the suit is dismissed as against the 1^st respondent/1^st plaintiff. In other words, part of the decree is against the 1^st respondent. When a decree is either wholly or in part against a party to the proceeding, that has to be challenged in accordance with the law. Here against that part of the decree refusing the plea of appellant, he filed A.S. No.153 of 2009. It is admitted by the learned counsel for the 1^st respondent that the 1^st respondent has not challenged that part of the decree against him either by way of an independent appeal or by way of a cross objection.

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Under Rule 22 of Order XLI of the Code it is only when a finding is against the respondent that he could with or without filing a cross objection challenge that finding in the appeal preferred by the appellant. But when a part of the decree is against him, he has to file an independent appeal or cross objection as regards that part of the decree against him.

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Learned counsel for the 1^st respondent has

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R.S.A. No.1127 of 2011

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attempted to invoke Rule 33 of Order XLI of the Code. I am not inclined to think that the said provision is intended to cover situation of this nature were a party by not appealing against that part of the decree has allowed that part of the decree against him to become final. The purport of Rule 33 of Order XLI is to enable the appellate court while interfering in favour of the appellant to take appropriate decision which the trial court should have done to do complete justice between the parties and to avoid conflicting decrees. Hence resort cannot be had to Rule 33 of Order XLI of the Code. It is seen that the first appellate court has not adverted to these aspects of the matter while granting relief to the 1^st respondent.

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Learned counsel for the 1^st respondent requested that in the view this Court has taken, the appeal may be remitted to the first appellate court so that it is open to the 1^st respondent either to file an independent appeal or prefer cross objection as the case may be after seeking condonation of the delay.

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The learned counsel for the appellant has resisted the request. But having regard to the facts and circumstances of the case I am of the view that the matter has to go back to the

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R.S.A. No.1127 of 2011

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first appellate court for a fresh decision since the first appellate court did not apply its mind as to the question whether a share could be allotted to 1^st respondent when that part of the trial court's decree is against him. Hence I am inclined to allow the request of the respondents.

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In view of my finding on the last substantial question of law framed, the other questions raised by the appellant are left open for decision by the first appellate court.

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Resultantly, the Second Appeal is allowed by way of remand as under:

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(i) Judgment and decree of learned Sixth Additional District Judge, Ernakulam in A.S. No.153 of 2009 are set aside.

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(ii) A.S. No.153 of 2009 is remitted to the

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learned Sixth Additional District Judge, Ernakulam for fresh decision after hearing parties and as provided under law.

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R.S.A. No.1127 of 2011

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(iii) Parties are directed to appear in that court on 31.07.2012.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Saidukunju v. Nassar

Case brief

What is this about?

What did the court decide?

Saidukunju v. Nassar

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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