Allowed

B. Shrinath Rao v. Vijayan

Kerala HC16 Feb 2018RFA/773/2014

Case brief

AI extract

What is this about?

Appellant challenges a partition decree based on a compromise. The High Court allowed the appeal, setting aside the decree because the lower court accepted a compromise relying on alleged powers of attorney that were not produced and whose genuineness was not established.

What did the court decide?

The preliminary judgment and decree of the court below were set aside, and the matter was remanded for a fresh enquiry into the validity of the powers of attorney.

B. Shrinath Rao Vs Vijayan — Partition | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

¶4

FRIDAY, THE 16TH DAY OF FEBRUARY 2018 / 27TH MAGHA, 1939

¶5

RFA.No. 773 of 2014

¶6

DECREE & JUDGMENT DATED 31.10.2014 IN OS 179/2011 OF SUB COURT, KOCHI

¶7

APPELLANT IN RFA/3RD DEFENDANT IN OS

¶8

B. SHRINATH RAO, AGED 53 YEARS, S/O. LATE BHASKAR RAO, RESIDENT OF H.NO.766, SECTOR 5, SAKET, PUSHPA VIHAR, NEW DELHI-110 017.

¶9

BY ADVS.SRI.T.K.PANKAJAKSHAN PILLAI SRI.SHIVASANKAR RAO SRI.SAJI PANKAJAKSHAN

¶10

RESPONDENTS IN RFA/PLAINTIFF & DEFENDANTS 1,2,4,5,6 & ADDL.DEFENDANTS 7-19:

¶11

1. VIJAYAN, AGED 50 YEARS, S/O. ANANTHA SIVAN, RESIDING AT H.NO.10/1663, AMARAVATHY, FORT KOCHI-682 001.

¶12

2. VIMALA, AGED 85 YEARS, W/O. LATE BHASKAR RAO, (48-D MASJID MOTH, DDA.FLATS, NEW DELHI-110 048), NOW RESIDENT OF H.NO.766, SECTOR 5, SAKET, PUSHPA VIHAR, NEW DELHI-110 017.

¶13

3. VISWANATHA RAO, S/O. BHASKAR RAO, (DIED) (48-D MASJID MOTH, DDA.FLATS, NEW DELHI-110 048), NOW RESIDENT OF H.NO.766, SECTOR 5, SAKET, PUSHPA VIHAR, NEW DELHI-110 017. 4. PRASANNA, AGED 51 YEARS, W/O. LATE RAGHUNATHA RAO, (48-D MASJID MOTH, DDA.FLATS, NEW DELHI-110 048), NOW RESIDENT OF H.NO.766, SECTOR 5, SAKET, PUSHPA VIHAR, NEW DELHI-110 017. (D-4 IN THE LOWER COURT) 5. SAINATH, AGED 29 YEARS, S/O. RAGHUNATHA RAO, (48-D MASJID MOTH, DDA.FLATS, NEW DELHI-110 048), NOW RESIDENT OF H.NO.766, SECTOR 5, SAKET, PUSHPA VIHAR, NEW DELHI-110 017. (D-5 IN THE LOWER COURT) 6. SUNDARSAN, AGED 27 YEARS, S/O. REGHUNATHA RAO, (48-D MASJID MOTH, DDA.FLATS, NEW DELHI-110 048), NOW RESIDENT OF H.NO.766, SECTOR 5, SAKET, PUSHPA VIHAR, NEW DELHI-110 017. (D-6 IN THE LOWER COURT) 7. PAUVANA, W/O. LATE VISWANATHA RAO 48-D, MASJID MOTH, DDA.FLATS, NEW DELHI-110 048. (ADDL.D-7).

¶14

RFA.No. 773 of 2014

¶15

8. SANGEETHA, AGED 30 YEARS, D/O. LATE VISWANATHA RAO, 48-D, MASJID MOTH, DDA.FLATS, NEW DELHI-110 048. (ADDL.D-8). 9. POOJA, AGED 27 YEARS, D/O. LATE VISWANATHA RAO, 48-D, MASJID MOTH, DDA.FLATS, NEW DELHI-110 048. (ADDL.D-9) 10. SAROJINI, W/O. LATE GOVARDHAN, AGED 68 YEARS, RESIDING IN H.NO.10/1616, AMARAVATHY, FORT KOCHI-682 001. (ADDL.D-10). 11. G.S.UMANATH, S/O. GOVARDHAN, AGED 46 YEARS, BUSINESS (H.NO.10/1616, AMARAVATHY, FORT KOCHI-682 001) (ADDL.D-11) 12. JAYACHANDRAN, S/O. GOVARDHAN, AGED 40 YEARS, BUSINESS (H.NO.10/1616, AMARAVATHY, FORT KOCHI-682 001) (ADDL.D-12) 13. SREEKUMAR, S/O. GOVARDHAN, AGED 37 YEARS, BUSINESS (H.NO.10/1616, AMARAVATHY, FORT KOCHI-682 001. (ADDL.D-13). 14. ANITHA, D/O. GOVARDHAN, AGED 42 YEARS, RESIDING IN H.NO.11/271-A, THUNDIPPARAMBIL HOUSE, CHIRAKKAGAM, VARAPUZHA-682 517. (ADDL.D-14). 15. JAYANTHI MADHUSUDHANAN, D/O. GOVARDHAN, AGED 47 YEARS, RESIDING IN H.NO.10/1591, AMARAVATHY, KOCHI-682 001. (ADDL.15). 16. RAJESH, S/O. GIRIVASA RAO, AGED 45 YEARS, BUSINESS, RESIDING AT H.NO.19/967, ANUGRAHA, CHIRAKUZHI PARAMBU, NEAR ACHUTHAN GIRLS HIGH SCHOOL, CHALEPURAM, KOZHIKODE-673 002. (ADDL.D-16). 17. RITHESH, S/O. GIRIVASA RAO, AGED 41 YEARS, (H.NO.19/967, ANUGRAHA, CHIRAKUZHI PARAMBU, NEAR ACHUTHAN GIRLS HIGH SCHOOL, CHALEPURAM, KOZHIKODE-673 002) 48-D, NOW AT MASJID MOTH D.D.A. FLATS, NEW DELHI - 110048 (ADDL.D-17).

¶16

*** 18. PRABHAVATHY, W/O. PRABHAKAR RAO, AGED 70 YEARS, RESIDING IN H.NO.10/67, SJD STREET, (DIED) AMARAVATHY, KOCHI-682 001. (ADDL.D-18) 19. PREETHY, D/O. PRABHAKAR RAO, AGED 39 YEARS,RESIDING AT H.NO.10/67, AMARAVATHY, KOCHI-682 001. (ADDL.D-19).** _ IT IS RECORDED THAT THE 19TH RESPONDENT, WHO IS ALREADY IN THE PARTY ARRAY, IS THE LEGAL HEIR OF THE DECEASED 18TH RESPONDENT VIDE ORDER DATED 19.12.17 IN RFA._*

¶17

R15 BY ADV. SUNIL N. SHENOY R15 BY ADV. SRI.K.R.VINOD R15 BY ADV. MS.JENCY SUSAN JOSE R15 BY ADV. SRI.V.SRI NATH R5-R9 BY ADV. SRI.H.PRAVEEN (KOTTARAKARA) R1, R10-R14, R16, R17 & R19 BY ADV. SRI.P.CHANDRASEKHAR R1, R10-R14, R16, R17 & R19 BY ADV. SRI.K.ARJUN VENUGOPAL R1, R10-R14, R16, R17 & R19 BY ADV. SMT.MARY RESHMA GEORGE R1, R10-R14, R16, R17 & R19 BY ADV. SMT.V.A.HARITHA R1, R10-R14, R16, R17 & R19 BY ADV. SMT.P.M.MAZNA MANSOOR R1, R10-R14, R16, R17 & R19 BY ADV. SRI.JEEVAN RAJEEV R2 & R4 BY ADV. SMT.M.A.ZOHRA

¶18

THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16-02-2018 ALONG WITH CO NO.94/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

K. ABRAHAM MATHEW, J.

¶20

R.F.A. No. 773 of 2014 & C.O. No. 94 of 2015

¶21

Dated this the 16^th day of February, 2018

¶22

J U D G M E N T

¶23

This appeal arises from the judgment and the decree in OS No.179/2011 on the file of the Sub Court, Kochi, which was for partition of the properties. A petition was filed (IA No.1294/2014) to record compromise. Admittedly, the third defendant was not a party to the compromise. The lower court acted upon the compromise petition as well as the evidence adduced in the suit to pass a preliminary decree. Its legality and correctness are challenged.

¶24

2.Heard the learned counsel for the parties concerned.

¶25

3.It is seen from the compromise petition (IA No.1294/2014) that the additional seventh defendant signed the compromise on her behalf and on behalf of defendants 1, 5, 6, 8 & 9 in her capacity as their power of attorney holder. It is further seen that the additional

¶26

11^th defendant signed the compromise in his personal

¶27

R.F.A. No. 773/2014 & C.O. No. 94/2015

¶28

..2..

¶29

capacity and in his capacity as power of attorney holder of defendants 12, 16 & 17. The power of attorney allegedly executed by defendants 12, 16, & 17 in favour of additional 11^th defendant was not produced before the court below. So, the court should not have accepted the compromise to this extent.

¶30

4.It is submitted by the learned counsel that the power of attorney allegedly executed by defendants 1, 5, 6, 8 & 9 is not a genuine one. According to the learned counsel, defendants 1 & 5 have not executed power of attorney in favour of the additional seventh defendant. This is a matter to be enquired into by the court.

¶31

5.Since I have already entered a finding that there is no evidence to show that defendants 12, 16 & 17 have executed a power of attorney in favour of additional 11^th defendant, the judgment and decree passed on the basis of such a power of attorney are to be set aside.

¶32

In the result, this R.F.A. and the Cross Objection are allowed:

¶33

The preliminary judgment and the preliminary decree of

¶34

R.F.A. No. 773/2014 & C.O. No. 94/2015

¶35

..3..

¶36

the court below are set aside. The lower court is directed to consider the matter afresh. It shall conduct an enquiry into the allegation that the power of attorney allegedly executed by defendants 2, 5, 6, 8 & 9 is not a genuine one. It shall also enquire whether defendants 12, 16 & 17 have executed a power of attorney in favour of the 11^th defendant.

¶37

Sd/- K. ABRAHAM MATHEW JUDGE

¶38

bka/

B. Shrinath Rao v. Vijayan

Case brief

What is this about?

What did the court decide?

B. Shrinath Rao v. Vijayan

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

Suresh Babu Vs a.Narayani

Jyolsna Binu Vs State Police Chief

Muhammed Kutty Vs State of Kerala

P. Sarada Vs A.K. Kannan Nair

Latheef Vs Prasanna Kumari

Jaison Johnson Vs Renjumon G