Partly allowed

M.Rajendran v. P.Chandrakanthi Amma

Kerala HC12 Jul 2017AS/316/2002

Case brief

AI extract

What is this about?

The High Court allowed an appeal suit contesting a final decree in a partition suit. The Court set aside the final decree to enable the appellant to be impleaded based on a sale deed of a deceased defendant's share, while affirming the preliminary decree and directing that existing allotments remain undisturbed until fresh proceedings are completed.

What did the court decide?

A.S.No.316 of 2002 allowed; A.S.No.29 of 2003 dismissed. Final decree proceedings remanded to enable impleading of appellant on sale deed. Existing allotments not disturbed.

M.Rajendran Vs P.Chandrakanthi Amma — Partition | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN

¶4

WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939 A.S.No.316 of 2002(D)

¶5

AGAINST THE ORDER IN I.A.NO.3713/1998 IN O.S.NO.763/1994 OF I ADDL. SUB COURT, KOZHIKODE DATED 30-10-1999

¶6

APPELLANT/3RD PARTY:

¶7

M.RAJENDRAN, AGED 53 YEARS, S/O. BALAKRISHNAN NAIR, RESIDING AT 34/559, CIVIL STATION, KOZHIKODE-20. BY ADVS.SRI.T.KRISHNANUNNI(SR.)

¶8

RESPONDENTS/PETITIONERS IN I.A./PLAINTIFFS IN SUIT AND RESPONDENT IN I.A. AND 2ND DEFENDANT IN SUIT:

¶9

P.CHANDRAKANTHI AMMA, AGED 68 YEARS, W/O.MENICHODATH KRISHNANKUTTY NAIR, RESIDING AT 'KRISHNA CHANDRA, KOMMERI, KOZHIKODE, VELAYANAD AMSOM KOMMERI DESOM OF KOZHIKODE TALUK. 2. P.SARATHKUMAR, AGED 51 YEARS, S/O. MENICHADETH KRISHNANKUTTY NAIR, RESIDING AT 'KRISHNA CHANDRA', KOMMERI, KOZHIKODE, VALAYANAD AMSOM KOMMERI DESOM OF KOZHIKODE TALUK.

¶10

P.VIMALKUMAR, AGED 46 YEARS, S/O.MENICHEDATH KRISHNANKUTTY NAIR, RESIDING AT 'KRISHNACHANDRA', KOMMERI, KOZHIKODE, VALAYANAD AMSOM KOMMERI DESOM OF KOZHIKODE TALUK. 4. P.DILEEPKUMAR, AGED 41 YEARS, S/O. MENICHEDATH KRISHNANKUTTY NAIR, RESIDING AT 'KRISHNA CHANDRA', KOMMERI, KOZHIKODE VALAYANAD AMSOM KOMMERI DESOM OF KOZHIKODE TALUK.

¶11

MENICHEDATH AMMUKUTTY, AGED 76 YEARS, D/O. LAKSHMIKUTTY AMMA, RESIDING AT MENICHEDATH HOUSE, THIRUTHIYAD P.O., PUTHIYARA, KOZHIKODE, KALATHINKUNNU AMSOM DESOM OF KOZHIKODE TALUK. (DIED)

¶12

(APPELLANT IS EXEMPTED FROM THE NECESSITY OF SUBSTITUTING THE OTHER LEGAL REPRESENTATIVES OF THE DECEASED 5TH RESPONDENT AS PER ORDER IN I.A.NO.1291/2017 DATED 12.07.2017)

¶13

R1 TO 4 BY ADV. SRI.K.P.BALASUBRAMANYAN R5 BY ADV. SRI.THOMAS ANTONY

¶14

THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10-07-2017, ALONG WITH A.S.NO.29/2003, THE COURT ON 12-07-2017 DELIVERED THE FOLLOWING:

¶15

V.CHITAMBARESH & SATHISH NINAN, JJ.

¶16

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

¶17

A.S.Nos.316 of 2002 & 29 of 2003

¶18

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

¶19

Dated this the 12^th day of July, 2017

¶20

JUDGMENT

¶21

Chitambaresh, J.

¶22

1.The appeal suits have been filed by a stranger to the proceedings impugned after obtaining leave to appeal earlier from this Court. The stranger is none other than the son of the second defendant who claims title over a portion of the plaint schedule property under a sale deed.

¶23

2.A.S.No.29 of 2003 arises from the preliminary decree whereas A.S.No.316 of 2002 arises from the final decree in a suit for partition. The plaint schedule property originally

¶24

AS316/02 & 29/03

¶25

-: 2 :-

¶26

belonged to Lakshmikutty Amma who was the mother of Krishnankutty Nair as well as the defendants. The plaintiffs who are the legal heirs of Krishnankutty Nair seek one third share in the property by partition. The defendants 1 and 2 are the brother (a bachelor) and the sister of Krishnankutty Nair who are now dead.

¶27

3.The first defendant set up a Will dated 10.3.1978 alleged to have been executed by Lakshmikutty Amma in his favour in respect of the plaint schedule property. The Will was neither produced in the court below nor attempted to be proved by examining any one of the attesting witnesses. A notarized copy of the alleged Will is produced along with I.A.No.1288/2017 in this appeal. The application is silent as regards the custody of the original Will and there is no reason as to why secondary evidence should be admitted. No grounds have been made out to admit additional

¶28

AS316/02 & 29/03

¶29

-: 3 :-

¶30

evidence in this appeal under Order XLI Rule 27 CPC in the circumstances of the case.

¶31

4.The notarized copy of the alleged Will does not inspire confidence in court and no grounds exist to allow I.A.No.1288/2017 also. The property would devolve on the plaintiffs as well as defendants 1 and 2 in the absence of a Will by Lakshmikutty Amma. The court below has correctly granted one third share to the plaintiffs together which cannot be faulted with. The defendants 1 and 2 are each entitled to one third share in the plaint schedule property as has been found by the court below. The preliminary decree for partition does not merit interference in this appeal suit and the same is hereby affirmed.

¶32

5.The first defendant died as a bachelor after the preliminary decree and his share would devolve on the plaintiffs

¶33

AS316/02 & 29/03

¶34

together and the second defendant. But the court below in passing the final decree has omitted to take note of the devolution of the share of the first defendant. The final decree for partition is evidently bad in law and is liable to be set aside in the circumstances. But then it is brought out that the first defendant has sold his share to the appellant under a sale deed (Document No.159/1995). The appellant seeks an opportunity to produce the sale deed in the court below and step into the shoes of the first defendant.

¶35

6.We are inclined to remand the final decree proceedings to the court below to enable the appellant to get himself impleaded on the basis of the sale deed. The legality of the sale deed has of course to be decided by the final decree court on the basis of evidence. The second defendant is also dead and her legal heirs are also to be brought on record in the final decree proceedings. The share due to the first

¶36

AS316/02 & 29/03

¶37

-: 5 :-

¶38

defendant shall be allotted to the appellant if the sale deed relied on is found to be legal and valid. The sale deed even if

¶39

valid can pertain to the share of the first defendant notwithstanding the identity of property scheduled.

¶40

7.We however make it clear that the allotment already made to the plaintiffs under the impugned final decree shall not be disturbed to the extent possible. This is because the final decree has been put into execution and the parties have long ago taken delivery of the property. No re-delivery of the property need be ordered pending the passing of the final decree afresh in the circumstances. The parties shall appear in the court below on 14.8.2017 and the final decree proceedings shall be expedited. I.A.No.1288/2017 filed for reception of additional evidence in the appeal suit is dismissed for the reasons stated above.

¶41

AS316/02 & 29/03

¶42

-: 6 :-

¶43

A.S.No.29 of 2003 is dismissed and A.S.No.316 of 2002 is

¶44

allowed. No costs.

¶45

Sd/-

¶46

V.CHITAMBARESH, JUDGE

Sd/-

SATHISH NINAN, JUDGE

Sha/100717

-true copy-

PS to Judge

AS316/02 & 29/03

-: 7 :-

V.CHITAMBARESH & SATHISH NINAN, JJ.

¶55

JUDGMENT

M.Rajendran v. P.Chandrakanthi Amma

Case brief

What is this about?

What did the court decide?

M.Rajendran v. P.Chandrakanthi Amma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Kerala State Civil Supplies Corporation Vs M/S.Appanna Pawadeppa Jalihal

St. Thomas Forane Church Vs St. Francis Reading Association

K.K.Santhappan Vs Janaki

Kerala State Cashew Development Corpn. Vs M/S.Binod Cashew Corpn.

Leela Vs Vijayakumar

K.a.Kamalakshi Amma Vs K.a.Sethunathan