Dismissed

Kamaludeen v. Harikumar

Kerala HC13 Jan 2014RSA/759/2012

Case brief

AI extract

What is this about?

The High Court dismissed a regular second appeal filed by defendants in a partition suit. The appeal was against the dismissal of the first appeal for default due to the appellants' failure to serve notices and pursue the matter within time limits. The Court held the delay indicated dilatory tactics and found no substantial question of law.

What did the court decide?

Second appeal dismissed with no order as to costs.

Kamaludeen Vs Harikumar — Partition | Kerala HC (2014)

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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 N.K.BALAKRISHNAN

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MONDAY, THE 13TH DAY OF JANUARY 2014/23RD POUSHA, 1935

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RSA.No. 759 of 2012 (F)

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AGAINST THE JUDGMENT IN AS 50/2010 of DISTRICT COURT, KOLLAM DATED 16-07-2011

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AGAINST THE JUDGMENT IN OS 80/2001 of ADDL.SUB COURT, KOLLAM DATED 6.9.2009

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APPELLANTS/APPELLANTS/DEFENDANTS 5 & 8:

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1. KAMALUDEEN S/O.VEERA SAHIB, KALLUVILA PUTHEN VEETTIL PERAYAM CHERRY, THAZHUTHALA VILLAGE, KOLLAM DISTRICT.

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2. RAMLA

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THATTARUVILA VEETTIL, NADUVILAKKARA CHERRY MAYYANAD VILLAGE, KOLLAM.

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BY ADVS.SRI.PRATHEESH.P

SRI.K.SIJU

SRI.S.ABHILASH

SMT.BINDU GEORGE

RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 & 2, DEFENDANTS 1 TO 3, 6,7, & ADDL. DEFENDANTS 9 TO 11`:

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1. HARIKUMAR

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S/O.RAGHUNATHA PILLAI, KESAVA VILASOM GLASS FACTORY ROAD, KALAMASSERRY, ERNAKULAM 683109.

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2. MAHESH S/O.RAGHUNATHA PILLAI, KESAVA VILASOM GLASS FACTORY ROAD, KALAMASSERRY, ERNAKULAM 683109.

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3. PADMAVATHY AMMA W/O.RAGHUNATHA PILLAI, KESAVA VILASOM GLASS FACTORY ROAD, RAJAGIRI PO, ERNAKULAM 682 039.

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4. SREEKUMAR S/O.RAGHUNATHA PILLAI, ALTHARA MADOM, CHITTOOR P.O. ERNAKULAM 682 027.

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...2

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RSA.No. 759 of 2012 (F)

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-2-

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5. GANESHKUMAR

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S/O.REGHUNATHA PILLAI, JUNIOR ENGINEER, BCED CPWD KENDREEYA SADAN, KORAMANGALA, BANGALORE-34.

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6. NAGESH.M.R S/O.RAGHUNATHA PILLAI, KESAVA VILASOM GLASS FACTORY ROAD, RAJAGIRI P.O., ERNAKULAM 682 039.

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7. ABDUL RAHIM

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S/O.SULAIMAN KUNJU, RAHIMA MANZIL, VADAKKUMKARA KIZHAKKE CHERIYIL, MUKHATHALA VILLAGE KOLLAM DISTRICT 691 577.

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8. LAILA BEEVI

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D/O.SULAIMAN KUNJU, RASI MANZIL, VADAKKUMKARA KIZHAKKE CHERIYIL, MUKHATHALA VILLAGE KOLLAM DISTRICT 691 577.

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9. SUNIL KUMAR

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S/O.GOPALAN, GOPALA MANDIRAM, PERAYAM CHERRY THAZHUTHALA VILLAGE 691 589.

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10. JOHNSON VARGHESE

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S/O.VARGHESE, PLAMOOTTIL KIZHAKKATHIL PATTATHANAM P.O., PATTATHANAM CHERRY VADAKKEVILA VILLAGE 691 021.

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11. MOLLY ANTONY

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W/O.JOHNSON VARGHESE, PLAMOOTTIL KIZHAKKATHIL PATTATHANAM P.O., PATTATHANAM CHERRY VADAKKEVILA VILLAGE 691 021.

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R1 BY ADV. SRI.K.C.CHARLES R1 BY ADV. SRI.M.POLY MATHAI R1 BY ADV. SRI.VIMAL K.CHARLES R1 BY ADV.SRI.P.CHELLAPPAN R1 BY ADV.SMT.A.T.RENJU

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JJJ

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N.K. BALAKRISHNAN, J.

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R.S.A. No. 759 of 2012

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Dated this the 13^th day of January, 2014

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J U D G M E N T

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Defendants 5 to 8 in a suit for partition are the appellants. They obtained assignment of a portion of the property from the 1^st defendant. The plaintiffs and defendants 2 to 4 are members of the Tharwad. The relationship between the plaintiffs and defendants 2 to 4 was admitted by the appellants.

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It was contended by the appellants before the trial court that 30 cents of land comprised in survey no. 1955, forming part of the plaint schedule property, was assigned by the Land Tribunal to Kunjipillai Amma and so that 30 cents of land cannot be treated as tharwad property. But, in view of the fact that this was a property allotted as per Ext.A1 - family partition deed of 1104-ME (corresponding to

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R.S.A. No.759/2012

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1929), even if the purchase certificate was issued by one among them, that would enure to the benefit of all the coowners. The trial court also found that out of the aforesaid property 15.500 cents of property was allotted as per Ext.A1 to Kalyanipillai Amma, the great grandmother of the plaintiff, as per the 2^nd schedule to Ext.A1. Kunjipillai Amma - the daughter of Kalyanipillai Amma was allotted 15 cents of land as per the 4^th schedule to Ext.A1. That means, the total extent of 30 cents was held by Kalyanipillai Amma and her daughter Kunjipillai Amma as per Ext.A1. It was also pointed out that no purchase certificate, as such, was issued pertaining to that property; but only a certificate enabling the persons in possession of the property to assign that property, was issued.

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What can be gathered from the inclusion of this property in the partition deed of 1104- ME is that it was a tharwad property. Since the plaintiffs and defendants 1 to 4

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R.S.A. No.759/2012

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were born prior to 1.12.1976, they were found to be having equal right over the said property, being the co-owners as on 1.12.1976; on which date there was a notional partition as per Hindu Joint Family Abolition Act. If so, the sale deed executed by the 1^st defendant with respect to the property covered by Ext.A1 and the settlement deed - Ext.A3 of 1109-ME (corresponding to 1934), cannot bind the plaintiffs and defendants 2 to 4 and as such, the appellants/defendants 5 to 8 cannot claim any right over the property obtained assignment from the 1^st defendant.

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Since the document evidencing assignment executed by the 1^st defendant will be valid only in respect to her share in the property, the appellants who are the assignees can claim right only to the extent of the share which the 1^st defendant had over the property and so it is for the appellants to move the trial court while passing final

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R.S.A. No.759/2012

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decree to get allotment of that much land to their share which the 1^st defendant might be entitled to get allotted to her share.

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The appellants raised a plea that the 1^st

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defendant's father had acquired 50 cents of property and as he died intestate, that property devolved upon his wife Kunjipillai Amma and so it cannot be considered as Tharwad property. But that contention was not pursued further. No evidence on that point was adduced before the court below. Ext. A1 – the partition deed of 1104 ME (corresponding to 1929) and Ext.A3 – the settlement deed no. 2655/1109 (corresponding to 1934) were relied upon by the trial court to hold that the properties were held as tharwad properties. The settlement deed/gift deed executed by the mother to her daughter at the time when 'Marumakkathayam' system was in force, would rouse a presumption that the gift by the

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R.S.A. No.759/2012

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mother to the daughter in a 'Marumakkathayam' system was for the benefit of the Tharwad. Hence, the gifted property would get itself impressed with the character of a tharwad/thavazhy property. Hence, it was held that it was a Tharwad property. The purchase certificate obtained by the 1^st defendant was relied upon by the appellants to contend that the 1^st defendant alone had right over the property. Since she was one of the co-owners, the purchase certificate obtained by her will enure to the benefit of all the cosharers. Hence, negativing the contention raised by the appellants, a preliminary decree for partition was passed directing division of the plaint schedule property into 7 equal shares and to allot two such shares to the plaintiffs.

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An appeal was filed before the lower appellate court by the appellants herein with a delay of 214 days. The appellate court found that in spite of the direction

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R.S.A. No.759/2012

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issued to take steps, the appellants failed to take steps to issue notice to some of the respondents therein. It was found that the appellants were abusing the process of the court by not taking steps in the matter and hence the appeal was dismissed. It amounts to dismissal for default. The appellants did not file any application to get that petition restored nor did they venture to take steps to serve notice to the respondents before the lower appellate court. The appellants wanted to get the final decree proceedings protracted by filing this Second Appeal. It is important to note that this Second Appeal was filed with a delay of 166 days. Of course, that delay was condoned. But that has been pointed out only to state that the appellants were adopting dilatory tactics. If the appellants wanted to pursue the first appeal before the appellate court, it could have been done by filing application to review that order or to get that appeal restored by filing proper applications. That was

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R.S.A. No.759/2012

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not done. In these circumstances, I find no reason to

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entertain this Second Appeal. No substantial question of law arises for consideration in this Second Appeal.

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In the result this Regular Second Appeal is dismissed.

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Sd/N.K. BALAKRISHNAN, JUDGE

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//True Copy//

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P.A. to Judge

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jjj

Kamaludeen v. Harikumar

Case brief

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Kamaludeen v. Harikumar

Case brief

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