Dismissed

Sumathy v. Mariyammal

Kerala HC5 Apr 2016RP/292/2016

Case brief

AI extract

What is this about?

This review petition was dismissed. The High Court held that the judgment under review is without merit, as the lower courts were correct in excluding the inter se dispute between the second defendant and other defendants from the final decree proceedings due to non-payment of court fees.

What did the court decide?

Review petition dismissed; the specific findings regarding the inter se dispute are left undetermined.

Sumathy Vs Mariyammal — 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 P.B.SURESH KUMAR

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TUESDAY, THE 5TH DAY OF APRIL 2016/16TH CHAITHRA, 1938

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RP.No. 292 of 2016 () IN RSA.1343/2015

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JUDGMENT IN RSA 1343/2015 of HIGH COURT OF KERALA

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REVIEW PETITIONER(S)/5TH RESPONDENT IN THE SECOND APPEAL :

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SUMATHY, AGED 44 YEARS, W/O. ANAND, KARADIPPARA, KUNNAMKATTUPATHY VILLAGE, CHITTUR TALUK, PALAKKAD-678506.

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BY ADVS. SRI.S.VINOD BHAT

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SRI.LEGITH T.KOTTAKKAL

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RESPONDENT(S)/IST RESPONDENT AND RESPONDENTS 2 TO 5:

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MARIYAMMAL,

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AGED 56 YEARS, W/O. SAMBATHKUMAR, RESIDING AT KARADIPPARA, KUNNAMKUTTPATHY VILLAGE, CHITTUR TALUK, PALAKKAD-678506.

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VELUCHAMI MUTHARASSAN, AGED 78 YEARS, S/O. ARUMUGHA MUTHARASSAN, RESIDING AT KARADIPPARA, KUNNAMKATTUPATHY VILLAGE, CHITTUR TALUK, PALAKKAD-678506.

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DORARAJ @ DHARMARAJ, AGED 47 YEARS, S/O. VELUCHAMI MUTHARASSAN, KARADIPPARA, KUNNAMKATTUPATHY VILLAGE, CHITTUR TALUK, PALAKKAD-678506.

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SARASWATHY,

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AGED 52 YEARS, W/O. VEERAWAMY, KARADIPPARA, KUNNAMKATTUPATHY VILLAGE, CHITTUR TALUK, PALAKKAD-678506.

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VASATHAMANI,

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AGED 49 YEARS, W/O. PAZHAISWAMY, KARADIPPARA, KUNNAMKATTUPATHY VILLAGE, CHITTUR TALUK, PALAKKAD-678506.

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BY SRI.BINOY VASUDEVAN (R5) BY SRI.P.B.KRISHNAN (R1)

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 05-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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R.P.No.292 of 2016

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R.S.A. No.1343 of 2015

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Dated 5^th April, 2016.

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O R D E R

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Fifth respondent in the appeal seeks review of the

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judgment.

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The second appeal was preferred challenging the

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final decree in a suit for partition. The suit was decreed holding that the plaint schedule property shall be divided into six equal shares and the plaintiff shall be allotted one out of the same. Thereupon, the plaintiff initiated proceedings for passing of the final decree. In the final decree proceedings, the Advocate Commissioner has made separate allotments for the plaintiff and defendants 1, 2 and 3 and common allotment for defendants 4 and 5. The property described in schedule C to the report of the Advocate Commissioner was the allotment made to the second defendant and the property described in

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R.P.No.292 of 2016

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schedule E to the report of the Advocate Commissioner was the allotment made to defendants 4 and 5. After the report of the Advocate Commissioner, the second defendant filed I.A.No.2796 of 2010 seeking allotment of E schedule property also to her on the ground that she has purchased the rights of defendants 4 and 5 in the suit property. I.A.No.2796 of 2010 was dismissed by the final decree court and a final decree was passed on the basis of the report of the Advocate Commissioner. The second defendant challenged the final decree in appeal. The contention raised by the second defendant in the appeal was that since she has purchased the rights of defendants 4 and 5 in the suit property, she should have been allotted their share also in the final decree proceedings. The appellate court rejected the said contention of the second defendant holding that since the purchases relied on by the second defendant were effected prior to the preliminary decree, she is not entitled to raise the said question in the final decree proceedings. Consequently, the appeal was also dismissed. The second appeal was preferred by the

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R.P.No.292 of 2016

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second defendant challenging the said decision of the appellate court.

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When the second appeal came up for hearing, it was noticed that none of the defendants have paid court fee under Section 37(3) of the Kerala Court Fees and Suits Valuation Act. Consequently, the final decree passed by the trial court as confirmed in appeal was set aside in so far as it relates to allotment of shares to the defendants, without prejudice to the rights of the said defendants to file separate applications for passing of the supplementary preliminary decrees as also final decrees.

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The learned counsel for the review petitioner who is the fifth defendant in the suit, contended that since the allotment in favour of defendants 4 and 5 was set aside without examining the correctness of the decision taken by the courts below as to the claim of the second defendant for allotment of the shares of defendants 4 and 5 also, the second defendant will get another opportunity to raise her claim. According to the learned counsel, if non-payment of court fee is the only hurdle

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R.P.No.292 of 2016

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for examining the correctness of the views taken by the courts below in the decisions impugned in the second appeal, the review petitioner is prepared to pay the court fee.

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I do not find any merit in the contention raised by the learned counsel for the review petitioner. The view taken by me in the second appeal was that in so far as the defendants have not claimed partition and separate possession of their respective shares after paying the court fee provided under Section 37(3) of the Kerala Court Fees and Suits Valuation Act, the inter se dispute between the second defendant and defendants 4 and 5 was beyond the scope of the final decree proceedings initiated by the plaintiff an d that therefore, the courts below ought not have adjudicated the claim of the second defendant for allotment of the shares of defendants 4 and 5 in the said final decree application. The provisions contained in Order 41 Rule 33 of the Code of Civil Procedure confers power on this Court to modify the decree passed by the trial court as confirmed in appeal in the aforesaid manner.

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The review petition, in the circumstances, is

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R.P.No.292 of 2016

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without merits and the same is, accordingly, dismissed. It is, however, made clear that I have not decided the correctness of

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the findings rendered by the courts below as to the inter se dispute between the second defendant and defendants 4 and 5.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

Sumathy v. Mariyammal

Case brief

What is this about?

What did the court decide?

Sumathy v. Mariyammal

Case brief

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What did the court decide?

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