This Second Appeal allowed permission for plaintiffs to withdraw from a partition suit with liberty to file a fresh suit, correcting formal defects in the plaint regarding a Will's description and addressing the lack of property to partition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
TUESDAY, THE 14TH DAY OF FEBRUARY 2017/25TH MAGHA, 1938
RSA.No. 37 of 2010 (D)
AGAINST THE JUDGMENT AND DECREE DATED 11.08.2009 IN AS 106/2006 of II ADDITIONAL DISTRICT COURT, KOLLAM
AGAINST THE JUDGMENT AND DECREE DATED 23.12.2005 IN OS 322/2001 of MUNSIFF’S COURT, KARUNAGAPPALLY
APPELLANTS/APPELLANTS/PLAINTIFFS::
1. ANANTHAKRISHNA PILLAI, AGED 55, S/O.KESAVA PILLAI, KADAKKATHU VEEDU, NEENDAKARA MURI, NEENDAKARA VILLAGE, FROM KADAKATHU PUTHUVAL VEEDU.
2. RAJAN, AGED 45, S/O.KESAVA PILLAI, KADAKKATHU VEEDU, NEENDAKARA MURI, NEENDAKARA VILLAGE, FROM KADAKATHU PUTHUVAL VEEDU.
BY ADVS.SRI.K.S.MANU SRI.P.SREEKUMAR
RESPONDENTS/RESPONDENTS/DEFENDANTS::
1. SATHYSEELAN PILLAI, AGED 52, S/O.KESAVA PILLAI, KADAKKATHU VEEDU, NEENDAKARA MURI, NEENDAKARA VILLAGE.
2. UNNIKRISHNA PILLAI, AGED 35, S/O.KESAVA PILLAI, KADAKKATHU VEEDU, NEENDAKARA MURI, NEENDAKARA VILLAGE.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/-
B. KEMAL PASHA, J =================
R.S.A.No.37 of 2010
=================
Dated this the 14th day of February, 2017
Aggrieved by the concurrent findings entered by the Munsiff's Court, Karunagappally, in O.S.No.322 of 2001, followed by those of the II Additional District Court, Kollam in A.S.No.106 of 2006, the plaintiffs in O.S.No.322 of 2011 have come up with this second appeal.
R.S.A.No.37/2010 : 2 :
bequeathed to the parties concerned, by their maternal grandfather, through Will No.14 of 1984. Even though the number of the Will is noted in paragraph 3 of the plaint as 14 of 1984, in the latter portion of the plaint, the number of the Will is erroneously shown as 4 of 1994. Strangely enough, the trial court has taken it as 4 of 1996.
though an application for the issuance of a commission was allowed by the trial court, the plaintiffs failed to remit the commissioner's bata.
R.S.A.No.37/2010 : 3 :
Even if any bata was paid, no purpose would have been served, had the plaintiffs chosen to proceed with the present plaint. The present plaint is full of mistakes and it suffers from several formal difficulties. The trial court has rightly dismissed the suit. Before the trial court, the plaintiffs had not filed any I.A. seeking permission to withdraw from the suit with liberty to file a fresh suit on the same subject matter.
R.S.A.No.37/2010
: 4 :
Court on the following substantial questions of law:
“Whether the first appellate court was justified in dismissing I.A. No.1157/2009, an application filed to withdraw from the suit with liberty to file a fresh suit, in the light of the mistake committed in alleging the existence of Will No.4 of 1996, which does not exist?”
the Will have been incorrectly incorporated in the plaint. The same has to be considered as a formal defect. Apart from that in framing the suit itself, formal defects have been crept in. Unnecessarily, the suit was laid as one mainly for partition. In fact, there is no property to be partitioned at all, in view of the recitals in Exhibit-A7. When Exhibit-A7 Will was marked before the trial court, it is evident that there was no suppression of any Will.
R.S.A.No.37/2010 : 5 :
with regard to the Will in the plaint, which can always be treated as formal defects. When such formal defects exist, the lower appellate court ought to have permitted the plaintiffs to withdraw from the suit with liberty to file a fresh suit on the same subject matter. The plaintiffs have to file a fresh suit by properly framing the suit for appropriate reliefs.
R.S.A.No.37/2010
: 6 :
“in any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.”
when the parties are direct brothers. They should not continue to fight years and years. In order to have a quietus among the parties, this Court is satisfied that the relief presently sought for by the appellants for permitting them to withdraw from the suit with liberty to file a fresh suit on the same subject matter, can be granted.
In the result, this second appeal is allowed and the judgments and decrees passed by the trial court as well as the lower appellate court are set aside. I.A.No.1157 of 2009 filed by the plaintiffs/appellants before the lower appellate court stands allowed. The appellants are permitted to withdraw from the suit
R.S.A.No.37/2010
: 7 :
with liberty to file a fresh suit in respect of the same subject matter. In the nature of this appeal, the parties shall bear their respective costs.
Sd/B. KEMAL PASHA,
JUDGE.
DSV/17/2/17
// True Copy //
P.A. To Judge
2 issues framed by the court
Whether the first appellate court was justified in dismissing an application to withdraw from a suit with liberty to file a fresh suit due to errors in alleging the existence of a Will?
Whether a suit for partition lies when the alleged property has already been allotted separate shares via an unconditional Will?
1 provisions across 1 enactments
Ananthakrishna Pillai
Rajan
Sathyseelan Pillai
Unnikrishna Pillai
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
