Appeal against a preliminary decree for partition. The High Court dismissed the appeal, holding the lower court was not wrong in deferring the decision on the appellant's claim for reservation to the final decree proceedings, as no prejudice would result.
The appeal was closed with a direction to parties to agitate the matter in the final decree proceedings.
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 K.ABRAHAM MATHEW
WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939
RFA.No. 681 of 2016
AGAINST THE JUDGMENT & PRELIMINARY DECREE DATED 30.07.2016 IN OS 539/2011 OF PRL. SUB COURT, THALASSERY
APPELLANT/30TH DEFENDANT
PRATAP P.M AGED 64 YEARS, S/O.SREENIVASAN, SREE RAG, INDIRA NAGAR, CHALAD, KANNUR-670 014.
BY ADVS.SRI.N.M.MADHU
SMT.C.S.RAJANI
RESPONDENTS/PLAINTIFFS 1- 18 & 20-26/DEFENDANTS 1-20, 22-25 & 27-37:
1. SREELATHA T.P.
2. BRINDA BALAGOPAL
3. VIMALA SHANKAR
4. VIJAYALAKSHMI DAMODAR
5. AJITH DAMODAR
RFA.No. 681 of 2016
| 6. |
THANJUJA SURESH AGED 56 YEARS, D/O.VIJAYALAKSHMI, THEERTHAM, RAJEEV NAGAR, NEAR SWIMMING POOL, PUTHIYARA, KOZHIKODE-673 004. |
|---|---|
| 7. |
DEEPA PRAKASH AGED 52 YEARS, D/O.VIJAYALAKSHMI, 201-B BLOCK, PARAPALLI APARTMENT, CHEMBUKAVU, THRISSUR-680 020. |
| 8. |
SAMEETHA RAJITH AGED 43 YEARS, D/O.VIJAYALAKSHMI, 5-A TEMARIND NEST, CHEROOTY NAGAR HOUSING COLONY, PUTHIYARA, KOZHIKODE-673 004. |
| 9. |
T.P.GIREESH AGED 77 YEARS, S/O.SUNANDA, RESIDING AT FLAT NO.C-77, NATARAJ STREET, DHANALAKSHMI COLONY, VADAPALANI, CHENNAI-600 126. |
| 10. |
T.P.SATHEESH AGED 71 YEARS, S/O.SUNANDA, RESIDING AT THARAMMAL HOUSE, PUTHUPPANAM, VATAKARA, KOZHIKODE DISTRICT.673 101. |
| 11. |
THEJA SREEDHAR AGED 70 YEARS, D/O.SUNANDA, RESIDING AT THARAMMAL HOUSE, PUTHUPPANAM, VATAKARA, KOZHIKODE DISTRICT.673 101. |
| 12. |
C.P.JALAJA PADMANABHAN AGED 95 YEARS, D/O.LAKSHMI AMMA, NO.208, TOWER-2, CASAGRANDE, SENAPATHI, BAPAT MARG, LOWER PAREL, MUMBAI-400 013. |
| 13. |
USHA VENUGOPAL AGED 68 YEARS, D/O.JALAJA, RESIDING AT D-5, 814, BDAFAT, AUSTI TOWN LAY OUT, BANGALORE-560 447. |
| 14. |
MEERA PREMRAJ AGED 66 YEARS, D/O.JALAJA, FFI, PINE WOOD APARTMENTS, 2ND CROSS, SULTAN PALAYA R.T.NAGAR, P.O.BANGALORE-560 032. |
| 15. |
DIVYA PREMRAJ AGED 41 YEARS, D/O.MEERA, FLAT NO.303, DATE SAI TOWERS, RANGARAJU LANE, NAVEEN NAGAR ROAD, NO.1, BANJARA HILLS, HYDERABAD-500 034. |
| 16. |
DHEERAJ AGED 39 YEARS, S/O.MEERA, FFI, PINE WOOD APARTMENTS, 2ND CROSS, SULTAN PALAYA R.T.NAGAR, P.O.BANGALORE-560 032. |
RFA.No. 681 of 2016
17. RADHAKRISHNAN AGED 65 YEARS, S/O.JALAJA, NO.208, TOWER 2, CASAGRANDE, SENAPATHI, BAPAT MARG, LOWER PAREL, MUMBAI-400 013. 18. SREELAKSHMI JITHENDAR AGED 61 YEARS, D/O.JALAJA, NO.208, TOWER 2, CASAGRANDE, SENAPATHI, BAPAT MARG, LOWER PAREL, MUMBAI-400 013. 19. MRS. NEENA RAJINDRAKUMAR AGED 75 YEARS, W/O.RAJINDRAKUMAR, NEENA NO.17, SBI OFFICERS COLONY, CHEVAYOOR, KOZHIKODE-673 017. 20. REEJA DIVAKARAN AGED 50 YEARS, W/O.RAJENDRAKUMAR, E-204, PRAJAPATHY GARDEN, PLOT NO.39, SECTOR 5, NEW DELHI-110 006. 21. SUMESH RAJENDRAN P. AGED 48 YEARS, S/O.REJINDRAKUMAR, FLAT NO.503, SUNY PALACE, CHANGAMPUZHA SAMADHI ROAD, EDAPPALLI, KOCHI-682 024. 22. K.P.SURENDRAN AGED 77 YEARS, S/O.SATHYABHAMA, E/52, AYUDH VIHAR, SECTOR 13, FLAT NO.3, DWARAKA, NEW DELHI-110 078. 23. THANKAMMA SREENIVASAN AGED 94 YEARS, W/O.SREENIVASAN, MADATHIL, WOODLANDS, TALAP, KANNUR-670 001. 24. P.M.RANGIT AGED 70 YEARS, S/O.SREENIVASAN, MADATHIL, WOODLANDS, TALAP, KANNUR-670 001. 25. JAYASREE AGED 41 YEARS, D/O.LATE PREMALATHA, FLAT NO.52, HIGHLIGHT HARMONY, SADANAM ROAD, ERANHIPALAM, KOZHIKODE.673 006. 26. P.K.PADMANABHAN AGED 90 YEARS, S/O.KOUSALLYA NARAYANAN, NO.14/27, KOSALA, HARRINGTON ROAD, CHEPET, CHENNAI-600 031. 27. K.P.SAROJINI NARAYANAN AGED 88 YEARS, D/O.KOUSALLYA NARAYANAN, NO.14/27, KOSALA, HARRINGTON ROAD, CHEPET, CHENNAI-600 031. 28. M.P.VINAYAKUMAR AGED 72 YEARS, S/O.NETHRAVATHI, E2-305, SREERAM WHITE HOUSE, 5TH CROSS, 6TH MAIN, RT NAGAR, 2ND STAGE, BANGALORE-560 032.
RFA.No. 681 of 2016
29. N.P.JAYARAJ AGED 70 YEARS, S/O.NETHRAVATHI, E2-305, SREERAM WHITE HOUSE, 5TH CROSS, 6TH MAIN, RT NAGAR, 2ND STAGE, BANGALORE-560 032. 30. NIRMALA CHANDRASEKHAR AGED 68 YEARS, D/O.NETHRAVATHI, PLOT NO.242, SHOBHA ONYX, SARJAPUR ROAD, 65/2B AGARA, BANGALORE-560 034. 31. SARITHA AGED 50 YEARS, D/O.NIRMALA, PLOT NO.242, SHOBHA ONYX, SARJAPUR ROAD, 65/2B AGARA, BANGALORE-560 034. 32. JAYADEEP AGED 47 YEARS, S/O.NIRMALA, PLOT NO.242, SHOBHA ONYX, SARJAPUR ROAD, 65/2B AGARA, BANGALORE-560 034. 33. LEELA SEETHANATH AGED 85 YEARS, W/O.SEETHANATH, F-2, SITHIRA NIKETHAN, RUKKAMMAL COLONY, THUDIYALUR, COIMBATORE-641 031.
34. KRIPAKAR SEETHANATH AGED 64 YEARS, S/O.SEETHANATH, 2F-HILL VIEW APARTMENT, DRF. SUBHARAYAN ROAD, TATABAD, COIMBATORE-641 012.
35. PREMKUMAR SEETHANATH AGED 60 YEARS, S/O.SEETHANATH, PRASANTHI, 63/36, DHANALAKSHMI NAGAR, NARASIMHA NAIKAN PALAYAM, NEAR BSNL OFFICE, COIMBATORE-641 031.
36. SREENATH SEETHANATH AGED 57 YEARS, S/O.SEETHANATH, F-2, SITHIRA NIKETHAN, RUKKAMMAL COLONY, THUDIYALUR, COIMBATORE-641 031.
37. MRS. ANITHA RAMNATH AGED 82 YEARS, W/O.RAMNATH, PULLAMBIL HOUSE, CHIRAKKARA, THALASSERY-670 101. 38. SOBHA PRASAD AGED 57 YEARS, D/O.RAMNATH, PULLAMBIL HOUSE, CHIRAKKARA, THALASSERY-670 101. 39. GOUTHAMAN RAMNATH AGED 45 YEARS, S/O.RAMNATH, PULLAMBIL HOUSE, CHIRAKKARA, THALASSERY-670 101. 40. VANDANA KARTHIK AGED 43 YEARS, D/O.VISWANATHAN, RESIDING AT VANDAN, NO.7, RAMANATHAN STREET, KILPARK, CHENNAI-600 010.
RFA.No. 681 of 2016
41. MRS. CHANDRI RAMACHANDRAN AGED 80 YEARS, W/O.RAMACHANDRAN, RESIDING AT 41, WHEELER ROAD, 2ND CROSS, FRAZER TOWN, BANGALORE-560 005.
42. PREETHA DAYANANDAN AGED 55 YEARS, D/O.RAMACHANDRAN, RESIDING AT 41, WHEELER ROAD,
43. SANGEETHA JAYAKUMAR AGED 53 YEARS, D/O.RAMACHANDRAN, RESIDING AT 41, WHEELER ROAD,
44. DR. DEVI BHARATHAN AGED 50 YEARS, D/O.BHARATHAN, PAL GROVE, TC 167/762, MUDIPPURA ROAD, JAGATHI, THIRUVANANTHAPURAM.695 014.
45. DEENA SUJITH
46. JAIKUMAR
47. PREMDAS
48. GEETHA JAYASHANKAR
49. BALAKRISHNAN P AGED 83 YEARS, S/O.DEVAKI, DEEPA PRABHA, Y BLOCK, NO.47, 9TH STREET, ANNA NAGAR, CHENNAI.600 040.
50. SREELAKSHMI DAYANANDAN AGED 67 YEARS, W/O.DAYANANDAN, PULLAMBIL HOUSE, CHIRAKKARA, THALASSERY-670 104.
51. ANIRUDH AGED 36 YEARS, S/O.DAYANANDAN, PULLAMBIL HOUSE, CHIRAKKARA, THALASSERY-670 104.
52. RAJALAKSHMI M.P
RFA.No. 681 of 2016
53. PRASANNA GOPAL MADHAVAN AGED 75 YEARS, D/O.KARUNAKARAN, 63 GREEN WAYS ROAD, 2ND FLOOR, RA PURAM, CHENNAI-600 028.
54. K.P.RAVIKRISHNAN AGED 72 YEARS, S/O.KARUNAKARAN, 4-B, KOMAL ENCLAVE, NO.9, APPAGARDEN STREET, TAYLORS ROAD, KILPAUK, CHENNAI-600 010. 55. MEERA JAIKAR AGED 27 YEARS, W/O.JAYAKAR, C/O.PRASANNA GOPAL MADHAVAN, 63 GREEN WAYS ROAD, 2ND FLOOR, RA PURAM, CHENNAI-600 028. 56. KRISHNA KUMAR AGED 52 YEARS, S/O.SREELATHA, SRIKRISHNA, NEAR VELLAYIL RAILWAY STATION, KOZHIKODE-673 001. 57. SUNANDA VIDHU AGED 51 YEARS, D/O.SREELATHA, SRIKRISHNA, NEAR VELLAYIL RAILWAY STATION, KOZHIKODE-673 001. 58. SWARNA RAJEEV AGED 47 YEARS, W/O.RAJEEV, CANDALE APARTMENTS, 8TH FLOOR, NO.805, BARNASSERY, KANNUR-670 001. 59. BABITHA SREEDHAR AGED 43 YEARS, D/O.THEJA SREEDHAR, THARAMMAL HOUSE, BADAGARA, KOZHIKODE DISTRICT-673 101.
R4-R8, R12, R14,R16, R18, R22-R25 BY ADV. SRI.V.BINOY RAM R1-R3, R9-R11, R13, R19-R21, R56, R57, R59 BY ADV. SRI.T.R.RAVI
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. ABRAHAM MATHEW, J.
R.F.A. No. 681 of 2016
Dated this the 7th day of March, 2018
J U D G M E N T
The appellant is defendant No.30 in OS No.539/2011 on
the file of Sub Judge, Thalassery. The preliminary decree for partition passed by the trial court is challenged. In his written statement the appellant prayed for reservation of certain items for him at the partition. The trial court did not pass any order with regard to his claim for the reason that he and other parties who claimed reservations submitted that the claims can be decided in the final decree proceedings. This is challenged in this appeal.
3.The only question that arises for consideration is whether the lower court was wrong in not taking a decision as to the claim of reservation made by the appellant. In paragraph 21 of the impugned judgment it
R.F.A. No. 681 of 2016
..2..
is specifically stated that the parties submitted that the question of reservation can be relegated to the final decree proceedings. Now, the appellant cannot be heard to say that his claim should have been considered in the preliminary proceedings itself. That apart, no prejudice will be caused to him if the claim is decided in the final decree proceedings. So, I think it is only proper that the parties are directed to agitate the matter in the final decree proceedings.
In the result, this appeal is closed with the above observation.
Sd/-
K. ABRAHAM MATHEW JUDGE
bka/
2 issues framed by the court
Whether the lower court was wrong in not deciding the claim for reservation in the preliminary decree proceedings.
Whether the claim for reservation should have been reserved for the final decree proceedings.
Pratap P.M
Sreelatha T.P.
K. Abraham Mathew
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
