Partly allowed

Rosily Sebastian v. Paul @ Babu.K.S.

Kerala HC25 May 2017AS/449/1996

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of an appeal suit challenging a subordinate court judgment directing partition based on an agreement. The High Court affirmed the impugned decree but deleted the specific direction to follow the agreement, ruling that such directions belong in final decree proceedings.

What did the court decide?

Impugned judgment and decree affirmed; directions in paragraph 10 of the lower court judgment deleted.

Rosily Sebastian Vs Paul @ Babu.K.S. — Partition | Kerala HC (2017)

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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 V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN

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THURSDAY, THE 25TH DAY OF MAY 2017/4TH JYAISHTA, 1939

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AS.No. 449 of 1996 ( ) -----------------------

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AGAINST THE JUDGMENT AND DECREE IN OS.32/1993 of ADDL.SUB COURT, KOCHI DATED 31-08-1994

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APPELLANTS/PLAINTIFFS:

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------------- -------

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1. ROSILY SEBASTIAN, AGED 56, W/O LATE SEBASTIAN @ KUNJAPPAN, RESIDING AT KUTTIKATT HOUSE, CHELLANAM P.O, COCHIN – 8. (DIED)

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2. MARIA AUNTAMITA TRESA, AGED 22, D/O LATE SEBASTIAN @ KUNJAPPAN, RESIDING AT -DO- -DO-

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3. JOSE BENEDICT, S/O LATE SEBASTIAN, AGED 18, RESIDING AT -DO- -DO-

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BY ADVS.SRI.P.GEORGE WILLIAM, SMT. NANDINI MENON.C., SRI.RAJU JOSEPH

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RESPONDENTS/DEFENDANTS:

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1. PAUL @ BABU K.S, AGED ABOUT 55, S/O LATE SEBASTIAN, RESIDING AT BUILDING NO.5/233, KUTTIKATT HOUSE, CHELLANAM P.O, COCHIN – 8 (DIED)

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2. SMT. CELINA RAPHEAL, AGED ABOUT 60, W/O RAPHEAL AND D/O LATE SEBASTIAN, RESIDING AT MAVELI HOUSE, NEAR PAZHAT (NEW FATHIMA CONVENT) KUMBALANGHI, COCHIN – 7 (DIED)

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ADDL.R3. K.P GEORGE, S/O LATE K.S PAUL @ BABU K.S, KUTTIKATTU HOUSE, THURAVOOR SOUTH P.O, CHERTHALA, ALAPPUZHA DISTRICT. R4. JENCY SEBASTIAN, D/O LATE K.S PAUL @ BABU K.S, W/O SEBASTIAN, ALUNGAL HOUSE, NEAR ITI, CHAKKA, THIRUVANANTHAPURAM DISTRICT. R5. SEBASTIAN K.P, S/O LATE K.S PAUL @ BABU K.S, C/O K.P GEORGE, KUTTIKATTU HOUSE, THURAVOOR SOUTH P.O, CHERTHALA, ALAPPUZHA DISTRICT. R,R1 BY ADV. SRIPRAMOJ ABRAHAM R,R1 BY ADV. SRI.RENDEEP PREM R,R1,R3,R4,R5 BY ADV. SRI.SHIJU VARGHESE

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AS.No. 449 of 1996 ( )

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-2-

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IT IS RECORDED THAT APPELLANTS 2 AND 3 ARE THE LEGAL REPRESENTATIVES OF DECEASED 1ST APPELLANT AS PER ORDER DATED 10.06.2011 IN I.A NO.847/2008.

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LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 5 VIDE ORDER DATED 30.03.2017 IN I.A 437/17

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IT IS RECORDED THAT R2 DIED AND THE APPELLANTS 2 AND 3 AND RESPONDENTS 3 TO 5 ALREADY IN THE PARTY ARRAY ARE HER LEGAL HEIRS VIDE ORDER DATED 30.03.2017 IN I.A NO.452/2017.

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.Chitambaresh & Sathish Ninan, JJ. ==============================

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A.S No.449 of 1996

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

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Dated this the 25^th day of May, 2017

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JUDGMENT

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Chitambaresh, J

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The challenge in this Appeal suit is confined to

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paragraph 10 of the impugned judgment, which is extracted below.

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“10. Ext.B2 is an agreement executed by the 1^st plaintiff and the defendants during the pendency of the suit regarding partition of items 1 and 2. Since plaintiffs 2 and 3 are not parties to Ext.B2 and since no compromise has been reported to the Court based on Ext.B2, the same cannot be accepted as such. At the same time it should not be totally discarded also since the 1^st plaintiff who is the mother of the other plaintiffs signed Ext.B2 in the presence of mediators including her brother. The evidence of PW1 would show that she signed Ext.B2 after understanding the contents. She stated that she had put up fence according to the mode of division suggested in Ext.B2. In these circumstances, I think it is just and proper to direct a division as suggested in Ext.B2 as far

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A.S No.449/1996

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as practicable, subject to payment of money by way of owelty to the plaintiffs and the correct value of the share of the 2^nd defendant.”

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We fail to understand as to how Ext.B2 can have legal

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efficacy when it is hit by lispendens. Moreover, plaintiffs 2 and 3 who are also entitled to a share have not joined in Ext.B2 agreement. The court below erred in directing the partition to be effected in accordance with Ext.B2 agreement 'as far as practicable'. As to how best the property is to be divided has to be decided in the final decree proceedings only.

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The impugned judgment and decree of the court below is affirmed, however deleting the directions contained in paragraph 10 of the judgment. Anyone of the parties are entitled to apply for passing of the final decree.

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Appeal suit is disposed of. No costs.

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Sd/- V.Chitambaresh, Judge Sd/- Sathish Ninan, Judge

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vdv

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//True Copy//

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P.A to Judge

Rosily Sebastian v. Paul @ Babu.K.S.

Case brief

What is this about?

What did the court decide?

Rosily Sebastian v. Paul @ Babu.K.S.

Case brief

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