Remanded

Jagadamma v. Lekshmikutty Amma Sakunthala

Kerala HC2 Sept 2016OP(C)/751/2015

Case brief

AI extract

What is this about?

This petition challenged an order allowing respondents to restore an application to set aside an ex parte decree in a partition suit, despite the death of some respondents without impleading their legal heirs. The High Court set aside the order, directing the lower court to allow impleadment before fresh disposal.

What did the court decide?

The impugned order allowing IA No. 1072/2013 is set aside; the matter is remitted to the court below for fresh disposal with directions to allow impleadment of legal representatives.

Jagadamma Vs Lekshmikutty Amma Sakunthala — Partition | Kerala HC (2016)

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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 K.RAMAKRISHNAN

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FRIDAY, THE 2ND DAY OF SEPTEMBER 2016/11TH BHADRA, 1938

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OP(C).No. 751 of 2015 (O)

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-------------------------(I.A.NO.1072/2013 IN OS.NO.157/2003 OF SUB COURT, PATHANAMTHITTA)

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PETITIONER(S):

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1. JAGADAMMA, W/O.RAGHAVAN, THOPPIL PUTHENVEEDU, PERINGANADU VILLAGE,

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PRESENTLY RESIDING AT KONKALIL PUTHENVEETTIL, CHEKAM MURI, PIRAVANTHOOR VILLAGE, PATHANAPURAM TALUK.

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2. OMANA, W/O.VISWAMBARAN, PRASANTHI, MELOOD MURI,PERINGANADU VILLAGE.

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3. RADHAKRISHNAN, S/O.RAGHAVAN, RADHAKRISHNA BHAVAN,PERINGANADU VILLAGE.

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4. RADHAMANY, W/O.ASOKAN, KARUNALAYAM, AMMAKANDAKARA MURI,

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PERINGANADU VILLAGE.

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BY ADVS.SRI.K.SHAJ

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SRI.SAJJU.S

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RESPONDENT(S):

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1. LEKSHMIKUTTY AMMA SAKUNTHALA, W/O.LATE PRABHAKARAN, GOWRI NIVAS,

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PAZHAKULAM PADINJARE MURI, PALLIKKAL VILLAGE-689 641

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2. PRADEEP, S/O.LATE PRABHAKARAN, GOWRI NIVAS, PAZHAKULAM PADINJARE MURI, PALLIKKAL VILLAGE-689 641

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3. PREENA, D/O.LATE PRABHAKARAN,GOWRI NIVAS, PAZHAKULAM PADINJARE MURI, PALLIKKAL VILLAGE-689 641

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2/-

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-2-

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OP(C).NO.751/2015

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4. VIJAYAMMA, W/O.MADHAVAN, ILASSERIL HOUSE, MELOOD MURI,

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PERINGANADU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT-689 645

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5. RENJITH, S/O.VIJAYAMMA, ILAYASSERIL HOUSE, MELOOD MURI,PERINGANADU VILLAGE,

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ADOOR TALUK,PATHANAMTHITTA DISTRICT-689 645

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6. RINIJA MADHAVAN, D/O.MADHAVAN, ILAYASSERIL HOUSE, MELOOD MURI,

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PERINGANADU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT-689 645

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R1 TO R3 BY ADVS. SRI.LIJI.J.VADAKEDOM SRI.SERGI JOSEPH THOMAS

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP(C).No. 751 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF DEATH CERTIFICATE OF SIVARAJAN

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EXHIBIT P2 TRUE COPY OF DEATH CERTIFICATE OF SOMARAJAN

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EXHIBIT P3 TRUE COPY OF IA NO.1072/2013 IN O.S NO.157/2003 ON THE FILE OF THE SUB COURT, PATHANAMTHITTA

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EXHIBIT P4 TRUE COPY OF DELAY CONDONATION PETITION IN IA NO 1072/2013 IN O.S NO 157/2003 ON THE FILE OF THE SUB COURT, PATHANAMTHITTA

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EXHIBIT P5 TRUE COPY OF OBJECTION FILED BY THE PETITIONERS IN IA NO.1072/2013 IN O.S NO 157/2003 ON THE FILE OF THE SUB COURT, PATHANAMTHITTA

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EXHIBIT P6 TRUE COPY OF OBJECTION FILED BY THE PETITIONERS IN THE DELAY CONDONATION PETITION IN I.A NO 1072/2013 IN O.S NO 157/2003 ON THE FILE OF THE SUB COURT,PATHANAMTHITTA

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EXHIBIT P7 TRUE COPY OF ORDER DATED 19/11/2014 IN I.A NO 1072/2013 IN O.S NO 157/2003 OF THE SUB COURT,PATHANAMTHITTA

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.S.TO JUDGE

sts

K. RAMAKRISHNAN, J.

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O.P.(C).No.751 of 2015

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....................................................... Dated this the 2^nd day of September, 2016.

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JUDGMENT

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This petition is filed by the petitioners challenging Ext.P7 order passed by the court below under Article 227 of the Constitution of India.

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It is alleged in the petition that the suit was filed for partition by the petitioners herein and one Somarajan and Sivararajan. Respondents 4 to 6 and one Prabhakaran where the defendants in the suit. A preliminary decree for partition was passed as the defendants remained ex parte after cross examination. Pursuant to the preliminary decree, the petitioners filed IA.No.768/2012 for passing a final decree on the basis of the preliminary decree. Meanwhile, said Sivarajan died on 17.6.2010 and Somararajan died on 30.9.2013 which were evidenced by Exts.P1 and P2 death certificates. Thereafter the defendants in the suit, namely respondents 4 to 7 and one Madhavan filed IA.No.1360/2009 in OS.No.157/2003 on 1.10.2009 to set aside the ex parte decree. In the meantime, the said Prabhakaran also died on 3.1.2010. On 10.3.2010 the legal heirs of the said Prabhakran namely respondents 1 to 3 herein filed an application to implead themselves as additional petitioners 5 to 7 in that petition. However as the petitioners in IA.1360/2009 were not interested in pursuing the application, that application was

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O.P.(C).No.751 of 2015 2

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dismissed on 9.7.2010. Thereafter respondents 1 to 6 filed IA.No.1230/2010 to restore IA.No.1360/2009. Though Sivarajan died on 17.6.2010, his legal heirs were not impleaded and Sivarajan was shown as partly living in the petition. The said petition was dismissed on 29.2.2012 for default. Thereafter respondents 1 to 3 filed IA.No.1072/2013 to restore IA.No.1230/2010 evidenced by Ext.P3 along with Ext.P4 petition to condone the delay of 464 days in filing the application. The petitioners herein filed Exts.P5 and P6 objections, but the court below without considering those objections properly, allowed the applications vide Ext.P7 impugned order, which is challenged by the petitioners by filing this petition.

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Heard Sri. K. Shaj, learned counsel appearing for the petitioners and Sri. Liji J. Vadakkedam, learned counsel appearing for respondents 1 to 3. Others remind absent.

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Learned counsel for the petitioners submitted that the court below had not considered the fact that the legal representatives of Somarajan and Sivarajan were not impleaded and without impleading the legal heirs, the petition filed is not proper. Though that aspect has been projected in the counter statement, that has not been considered by the court below.

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On the other hand, learned counsel for the respondents submitted that if this court feels that the petition is bad for non

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O.P.(C).No.751 of 2015

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impleading the legal heirs, he may be given an opportunity to impleaded them and proceed with the application in accordance with law.

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The fact that Sivarajan died on 17.6.2010 and his legal representatives were not impleaded in the application filed by the respondents to set aside ex parte decree though he died during the pendency of that application is not disputed. Thereafter Somarajan, another respondent in the application also died on 30.9.2013 but no steps were taken to implead his legal representatives also in the applications filed by the respondents to set aside the ex parte decree or in the application to restore the application to set aside the ex parte decree dismissed for default along with delay condonaiton application. Nothing was mentioned about the same in the impugned order. If some of the respondents died in the application without impleading legal heirs, proceeding with that application or without showing the reason for proceeding the application in the order is unsustainable in law. Either the court below will have to express opinion as to whether non impleadment of those persons will not affect the application or it can be proceeded even with the other parties on record on the estate is being represented by others. If it is a joint and indivisible decree, then the effect of death of one of the parties and non impleadment will result abatement on the entire decree itself. All

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O.P.(C).No.751 of 2015 4

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these aspects have not been considered by the court below while passing the impugned order. On that ground itself, the order passed by the court below has to be set aside. So Ext.P7 order passed by the court below allowing IA.No.1072(a)/2013 and 1072/2013 are set aide and the matter is remitted to the court below for fresh disposal in accordance with law. The petitioners in those applications are given an opportunity to implead the legal representatives of Sivarajan and Somarajan subject to law of limitation for impleading them and when such applications are filed, the court below is directed to consider those applications and pass appropriate orders after giving an opportunity to the petitioners herein and also the persons to be impleaded and then pass appropriate orders in those applications in accordance with law.

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With the above directions and observations, this petition is disposed of.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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O.P.(C).No.751 of 2015 5

Jagadamma v. Lekshmikutty Amma Sakunthala

Case brief

What is this about?

What did the court decide?

Jagadamma v. Lekshmikutty Amma Sakunthala

Case brief

What is this about?

What did the court decide?

What the court decided

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