Dismissed

Ponnammal v. Narayanaswamy

Kerala HC13 Jan 2016RSA/45/2015

Case brief

AI extract

What is this about?

A second appeal challenging a final decree in a partition suit was dismissed. The court held that the trial court was justified in correcting a preliminary decree mistake regarding the plaintiff's share and affirmed the legitimacy of the final decree proceedings, including the sale of the property among sharers.

What did the court decide?

Second appeal dismissed in limine; all interlocutory applications in the appeal closed.

Ponnammal Vs Narayanaswamy — 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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WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937

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RSA.No. 45 of 2015

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AGAINST THE JUDGMENT IN A.S.NO.308/2011 OF II ADDITIONAL DISTRICT COURT, PALAKKAD

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AGAINST THE JUDGMENT IN FDIA 1649/2010 IN O.S.NO.98/1979 OF ADDITIONAL MUNSIFF COURT, PALAKKAD

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APPELLANT(S)/APPELLANTS/PLAINTIFFS AND OTHER DEFENDANTS :

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1. PONNAMMAL, AGED 84 YEARS, W/O.PAZHANIYANDI, RESIDING AT SUBRAMANIAPURAM, TELUNGU STREET, KOPPAM AMSOM, PALAKKAD.

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2. SIVANANDAN, AGED 52 YEARS, S/O.PAZHANIYANDI, RESIDING AT SUBRAMANIAPURAM, TELUNGU STREET, KOPPAM AMSOM, PALAKKAD.

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3. KRISHNASWAMY, AGED 44 YEARS, S/O.PAZHANIYANDI, RESIDING AT SUBRAMANIAPURAM, TELUNGU STREET, KOPPAM AMSOM, PALAKKAD.

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4. JAYANTHI, AGED 36 YEARS D/O.PAZHANIYANDI, RESIDING AT SUBRAMANIAPURAM, TELUNGU STREET, KOPPAM AMSOM, PALAKKAD.

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5. AKILANDESWARI ALIAS AMMU, AGED 69 YEARS, W/O.N.NATESAN, THAYYAMMAL LAYOUT, KULATHUPALAYAM, NARASIPURAM, THONDAMUTHU, COIMBATORE.

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6. GAYATHRI ALIAS CHAYADEVI, AGED 42 YEARS, W/O.PAZHANIYAPPAN, MUTHAMPALAYAM, OLAVAKKODE, KAVILPAD AMSOM, PALAKKAD TALUK.

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7. RAJI, AGED 38 YEARS, W/O.ARULMOZHI, 475/3 V.O.C. STREET, MANDOOR, PALANI, TAMIL NADU.

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BY SRI.N.DHARMADAN (SENIOR ADVOCATE) ADV. SMT.D.P.RENU

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..2/-

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..2..

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RSA.No. 45 of 2015

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RESPONDENT(S)/RESPONDENTS/RESPONDENTS 8 TO 20/D3/PETITIONER :

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1. NARAYANASWAMY, AGED 72 YEARS, S/O.KRISHNA PILLAI, BHARATHI NAGAR, PODANUR, COIMBATORE-641 023.

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2. RAJAMMAL, AGED 82 YEARS, W/O.RATHNAVELU, TELUNGU STREET, PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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3. SARASWATHY, AGED 68 YEARS, D/O.RATHNAVELU PILLAI, TELUNGU STREET, PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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4. AKHILANDESWARI, AGED 66 YEARS, D/O.RATHNAVELU PILLAI, TELUNGU STREET, PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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5. MOHANAN, AGED 50 YEARS, S/O.RATHNAVELU PILLAI, TELUNGU STREET, PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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6. VIJAYALAKSHMI, AGED 41 YEARS, D/O.RATHNAVELU PILLAI, TELUNGU STREET, PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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7. VISWANATHAN, AGED 56 YEARS, S/O.RATHNAVELU PILLAI, TELUNGU STREET, PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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8. KRISHNAVENI, AGED 44 YEARS, D/O.RATHNAVELU PILLAI, TELUNGU STREET, PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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9. GANESH, AGED 42 YEARS, S/O.RATHNAVELU PILLAI, TELUNGU STREET, PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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10. PARAMESWARI, AGED 40 YEARS, D/O.RATHNAVELU PILLAI, TELUNGU STREET, PATTIKKARA KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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11. SREENIVASAN, AGED 38 YEARS, S/O.RATHNAVELU PILLAI, TELUNGU STREET, PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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12. SUDAN ALIAS AYYAPPAN, AGED 54 YEARS, S/O.RATHNAVELU PILLAI, TELUNGU STREET, PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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..3/-

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..3..

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RSA.No. 45 of 2015

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13. RAJATHI @ P.K.RAJALAKSHMI, AGED 67 YEARS, D/O.LATE KRISHNASWAMI PILLAI, TELUNGU STREET PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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14. PAPPATHY @ P.K.PARAMESWARI, AGED 49 YEARS, D/O.LATE KRISHNASWAMI PILLAI, TELUNGU STREET, PATTIKKARA, KIZHAKKUMPURAM, KOPPAM AMSOM, PALAKKAD-680 502.

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R1 BY ADV. SRI.SAJAN VARGHEESE K. (CAVEATOR ADVOCATES) ADV. SRI.LIJU. M.P

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2016, THE COURT ON 13-01-2016 DELIVERED THE FOLLOWING:

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Msd.

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P.B.SURESH KUMAR, J.

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R.S.A. No.45 of 2015

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Dated 13^th January, 2015.

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J U D G M E N T

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The legal representatives of the plaintiff in a suit for partition challenge in this second appeal, the final decree passed in the suit.

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The suit was filed claiming that the plaintiff is entitled to 1/6 share over the suit property. Though the plaintiff has claimed only 1/6 share over the suit property, the trial court declared that the plaintiff is entitled to 6/24 share in the suit property, as per the preliminary decree passed in the suit. The third defendant who remained ex parte in the suit later filed I.A.No.3628 of 2008 for correction of the said mistake in the preliminary decree. On the said application, the court corrected the preliminary decree clarifying that the plaintiff is entitled to only 4/24 share in the suit property as claimed by them in the suit. After the preliminary decree, the third defendant has purchased the shares of the remaining defendants over the suit

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RSA 45 of 2015

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property. Since the shares of the defendants including the third defendant were not declared in the preliminary decree, the third defendant thereafter filed I.A.No.1793 of 2009 seeking orders to declare their shares over the suit property also. The said application was allowed by the trial court on 27.5.2010 holding that the defendants are collectively entitled to the remaining 20/24 share over the suit property. The relevant portion of the order on I.A.No.1793 of 2009 reads thus :-

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“Heard both sides. Admittedly the decree is silent regarding share of defendants. 1 st defendant is entitled 1/6 share. 2 nd defendant is entitled to 2/6 share, 3 rd and 4 th defendants are entitled to 1/6 share each. As 1 st defendant died D5, D6 are entitled to 2/24 share each. So the defendants are entitled to 20/24 shares.

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Hence the application is allowed. The defendant's share is declared. The defendants are jointly entitled to 20/24 share. Application allowed. ”

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Thereupon, the third defendant filed I.A.No.1649 of 2010 seeking a final decree in the suit. In the final decree proceedings, a Commissioner was appointed, who in turn, filed a report stating that the extent of property available for

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RSA 45 of 2015

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partition is only 4.5 cents with a dwelling house and that it is not possible to partition the said property among the sharers by metes and bounds. The Commissioner also suggested that the auction of the suit property among the sharers is the only viable option for partition of the suit property. In the light of the said report of the Advocate Commissioner, the trial court directed the Advocate Commissioner to ascertain and report the fair value of the property. As per Ext.C2 report, the Advocate Commissioner has reported that the fair value of the property is Rs.18,10,000/-. Thereupon, the court ordered sale of the property among the sharers, fixing the upset price of the property at Rs.18,10,000/-. As directed by the court, the Advocate Commissioner auctioned the property among the sharers and the third defendant purchased the property in auction for Rs.18,10,000/-. Thereupon, the third defendant filed I.A.No. 1958 of 20 11 seeking orders to set off his share of the sale proceeds and permit him to pay the balance sale price. The said application was allowed and the third defendant was permitted to pay the balance sale price namely, Rs.3,02,000/-

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RSA 45 of 2015

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due to the plaintiff. The impugned final decree was passed thereafter on deposit of the said amount by the third defendant directing that the suit property be delivered over to the third defendant. The legal representatives of the plaintiff challenged the final decree in appeal. The appellate court, on a reappraisal of the materials on record, confirmed the decision of the trial court. Aggrieved by the decision of the appellate court, the legal representatives of the plaintiff have come up in this second appeal.

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Heard the learned Senior Counsel for the appellants as also the learned counsel for the first respondent, the third defendant.

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The learned Senior Counsel for the appellants contended that the trial court was not justified in correcting the preliminary decree at the instance of the third defendant who remained ex parte in the suit. The learned Senior Counsel also contended that the third defendant has not obtained a supplementary preliminary decree and as such, at any rate, he is not entitled to move the court for passing of the final decree.

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RSA 45 of 2015

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The learned Senior Counsel further contended that the plaintiff was not given notice of the auction sale of the suit property.

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The suit was filed for partition of the 1/6 share of

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the plaintiff over the suit property. As noted above, as per the preliminary decree, the trial court declared that the plaintiff is entitled to 6/24 share in the suit property which was more than what was claimed by him in the suit. The appellants who are the legal representatives of the plaintiff have no case that they are entitled to more than 1/6 share in the suit property. In other words, the direction issued in the preliminary decree that the plaintiff is entitled to 6/24 share in the suit property was a mistake. The parties to the suit were free to bring the said mistake to the notice of the court. Merely for the reason that the third defendant remained ex parte in the suit, it cannot be contended that the third defendant was not justified in bringing the said mistake to the notice of the court, especially when the mistake as aforesaid is one which could have been corrected by the trial court suo motu. The contention that the trial court was not justified in correcting the preliminary decree initially passed

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RSA 45 of 2015

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in the suit at the instance of the third defendant who remained ex parte in the suit is therefore, without substance.

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As stated above, the share of the plaintiff alone

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was declared in the preliminary decree passed in the suit on 30.10.1979. Since the shares of the defendants were not declared, the third defendant filed I.A.No.1793 of 2009 seeking orders to declare his share and also the shares of other defendants on the ground that he has purchased the shares of the remaining defendants. The said application was allowed by the trial court and the shares of the defendants were declared. The decision on I.A.No.1793 of 2009 is a supplementary preliminary decree as far as the shares of the defendants are concerned, though the order passed therein does not indicate in very many words that it is a supplementary preliminary decree. In so far as the share of the third defendant is declared by the court, it cannot be contended that he was not entitled to file an application for passing of the final decree.

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The legal representatives of the plaintiff have no

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case that notice has not been issued to them in the final decree

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RSA 45 of 2015

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proceedings. The sale of the property among the sharers was ordered by the court in the final decree proceedings in which the legal representatives of the plaintiff are parties. As such, the legal representatives of the plaintiff cannot be heard to contend that they were not given notice about the sale of the property. There is, therefore, no substance in the contention raised by the legal representatives of the plaintiff that they were not given notice of the sale of the suit property by the court.

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There is no question of law, much less any substantial question of law involved in this matter. The second appeal, in the said circumstances, is dismissed in limine . All the interlocutory applications in the appeal are closed.

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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)

Ponnammal v. Narayanaswamy

Case brief

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Ponnammal v. Narayanaswamy

Case brief

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