Allowed

Chacko Thomas v. George Thomas

Kerala HC12 Feb 2018RFA/144/2017

Case brief

AI extract

What is this about?

The High Court allowed the appeal, setting aside the lower court's preliminary decree for partition. It held that the judgment was unsustainable as it relied only on a proof affidavit without independent findings on the nature of co-ownership or the admissibility of documents. The matter was remanded for a fresh trial.

What did the court decide?

The appeal was allowed, the impugned judgment and decree were set aside, and O.S. No. 57 of 2014 was remanded for a fresh trial and disposal.

Chacko Thomas Vs George Thomas — Partition | Kerala HC (2018)

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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.N.RAVINDRAN &

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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MONDAY, THE 12TH DAY OF FEBRUARY 2018 / 23RD MAGHA, 1939

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RFA.No. 144 of 2017

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AGAINST THE DECREE/JUDGMENT IN OS 57/2014 of II ADDL.SUB COURT, THRISSUR DATED 24-11-2015

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APPELLANT/DEFENDANT NO.1

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CHACKO THOMAS MANIMALA PARAMBIL, KODAPPOOKKARA, KANAKKERI, VATTUKULAM, KOTTAYAM DISTRICT.

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BY ADVS.SRI.D.SREEKUMAR

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SRI.P.SANKARAN NAMPOOTHIRI

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RESPONDENTS/PLAINTIFFS & DEFENDANTS NO.2 & 3:

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1. GEORGE THOMAS MANIMALAPARAMBIL, VAZHAKKOD, MULLURKKARA P.O., THALAPPILLY TALUK, THRISSUR DISTRICT - 680 583.

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2. KURIYAN MANIMALA PARAMBIL, KANNAKKARI, MEENACHIL TALUK, KOTTAYAM DISTRICT, REPRESENTED BY THE POWER OF ATTORNEY HOLDER 1ST RESPONDENT GEORGE THOMAS - 680 583.

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3. THOMAS MANIMALAPARAMBIL, KANNAKKARI VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT - 686 577.

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4. JOSEPH ALIAS JOSE MANIMALAPARAMBIL, KADAPPOOKKARA DESOM, KANNAKKARI VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT - 686 577.

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R1 BY ADV. SRI.SANTHOSH P.PODUVAL R1 BY ADV. SMT.R.RAJITHA R1 BY ADV. SMT.VINAYA V.NAIR

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 12-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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vpv

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P.N.RAVINDRAN & R.NARAYANA PISHARADI, JJ.

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R.F.A.No.144 of 2017

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=-=-==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 12^th day of February, 2018

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JUDGMENT

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P.N.Ravindran, J.

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The appellant is the first defendant in O.S.No.57 of 2014 on the file of the Court of the II Additional Subordinate Judge of Thrissur. Respondents 1 and 2 are the plaintiffs and respondents 3 and 4 are defendants 2 and 3 respectively therein. The plaintiffs and the defendants are siblings. Respondents 1 and 2 had in O.S.No.57 of 2014 prayed for partition of two items of immovable properties more particularly described in the schedule to the plaint into 05 equal shares and allotment of 02 such shares to them.

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Though notice was served on the defendants and defendants 2 and 3 had filed a written statement admitting the plaint claim, the appellant herein, the first defendant in the suit, did not file a written statement. He was consequently set exparte on 8.7.2014. On application filed by him as I.A.No.2764 of 2014 the order setting him exparte was set aside. He did not even thereafter file a written statement. The explanation offered by the appellant in the instant appeal memorandum is that his counsel was suffering from mental illness and was not regular in attending the courts. In view of the fact

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W.A.No.144 of 2017

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-:2:-

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that defendants 2 and 3 had filed a written statement admitting the plaint claim, acting on the affidavit in lieu of chief examination filed by the first plaintiff and the documents produced along with it and marked as Exts.A1 to A5, the trial court passed a preliminary decree for partition, directing division of the plaint schedule properties into 05 equal shares and allotment of 02 such shares to the plaintiff and 01 such share each to defendants 1 to 3. The said preliminary decree is under challenge in this appeal.

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We heard Sri.D.Sreekumar, learned counsel appearing for the appellant and Sri.Santhosh P. Poduval, learned counsel appearing for the first respondent. Though the other respondents have been served, they have not entered appearance. Apart from merely stating that the title to the property is proved through Ext.A1 to A5, the documents produced and marked by the plaintiffs and the affidavit filed in lieu of chief examination by the first plaintiff, the trial court has not entered a finding as to whether the properties are co-ownership properties. There is no reference even to the case set out in the plaint. A Division Bench of this court has in Centre for Management Development v.

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Panayam Grama Panchayath (2017 (1) KLT 609) held that it is not legal and permissible to pronounce a judgment by simply receiving the proof affidavit and the documents produced along with it without looking into its contents, its probative value, admissibility, etc.

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W.A.No.144 of 2017

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-:3:-

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Reliance was placed on Order VIII Rule 5 and Order VIII Rule 10 of the Code of Civil Procedure to hold that a judgment should reflect the pleadings and the evidence adduced, the points or issues to be adjudicated and its adjudication with the reasoning. The impugned judgment lacks the basic ingredients which constitute a valid judgment. In such circumstances, we are of the considered opinion that the impugned judgment cannot be sustained.

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We accordingly allow the appeal, set aside the impugned judgment and decree and remand O.S.No.57 of 2014 to the Court of the II Additional Subordinate Judge of Thrissur for fresh trial and disposal. The parties shall appear through counsel in the court below on 5.3.2018. If the appellant intends to file a written statement, he shall do so on or before 5.3.2018. In the event of failure, the court below shall proceed to dispose of the suit in accordance with law without affording him any further opportunity to file a written statement.

Sd/-

P.N.RAVINDRAN

JUDGE

Sd/-

R.NARAYANA PISHARADI JUDGE

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/true copy/