Allowed

Xavier Milton Alias Shaju v. Kochu Thresia

Kerala HC20 Feb 2018RFA/821/2008

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against a preliminary decree for partition. The court set aside the decree due to improper service of summons on specific defendants, remanding the matter to the trial court for regular service of process.

What did the court decide?

The preliminary judgment and decree were set aside. The matter was remanded to the trial court to issue summons to other defendants.

Xavier Milton Alias Shaju Vs Kochu Thresia — 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 K.ABRAHAM MATHEW

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TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939

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RFA.No. 821 of 2008

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AGAINST THE PRELIMINARY JUDGMENT & DECREE DATED 24.02.2006 IN OS NO. 526/2002 OF THE IIND ADDITIONAL SUBORDINATE JUDGES COURT, ERNAKULAM

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APPELLANTS/DEFENDANTS 6-15:

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1 XAVIER MILTON ALIAS SHAJU, AGED 45 YEARS, S/O. LATE ANTONY,

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NEDUNILATH HOUSE, THAMMANAM.P.O, ERNAKULAM.

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2 LILLAMMA, AGED 50 YEARS, D/O. ANTONY,

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NEDUNILATH HOUSE, GIRINAGAR.P.O, ERNAKULAM.

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3 ELIZABETH, AGED 65 YEARS,

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W/O. GEORGE, NEDUNILATH HOUSE, THAMMANAM, KOCHI-32.

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4 JOLLY, AGED 40, S/O. GEORGE,

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NEDUNILATH HOUSE, ANCHUMURI, KOCHI-32.

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5 BIJU, AGED 35 YEARS,

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S/O. GEORGE, NEDUNILATH HOUSE,, KUTHAPPADI, ERNAKULAM.

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6 NISHA, AGED 33 YEARS,

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W/O. JUDE, THATTASSERY HOUSE, NETTOOR.P.O,, MARADU.

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7 TREASA, AGED 63 YEARS, W/O. AUGUSTINE,

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NEDUNILATH HOUSE, THAMMANAM.P.O, KOCHI-32.

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8 BENNY, AGED 40 YEARS,

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S/O. AUGUSTINE, NEDUNILATH HOUSE, THAMMANAM.P.O, KOCHI.

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9 SHAJI, AGED 39 YEARS, S/O. AUGUSTINE, SARANGI,

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VADARATH ROAD, THAMMANAM, KOCHI-32.

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10 MARY BESHA, AGED 33 YEARS,

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W/O. SANTHOSH, MUKKATH HOUSE, AROOR, ALAPPUZHA.

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BY ADVS.SRI.K.S.SAJEEV KUMAR

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SRI.LAJI SAM ZACHARIAH

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RESPONDENTS/PLAINTIFFS, DEFENDANTS 1-5, 16 & 17:

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1. KOCHU THRESIA, AGED ABOUT 53 YEARS,

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W/O. JOSEPH, VETTACKAL HOUSE, THORANATH PARAMBU, SOUTH

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JANATHA ROAD, PALARIVATTOM, KOCHI-25.

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2. KARMELI, AGED 76 YEARS, W/O.LATE RAPHAEL, KANNADI HOUSE,

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GEETHANJALI ROAD, CHALIKKAIVATTOM, THAMMANAM.P.O, KOCHI.

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RFA.No. 821 of 2008

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3. RAGINA, AGED 88 YEARS, W/O. LATE THOMAS, METHASSERY HOUSE,, MULAVUKADU, PONNARIMANGALAM,, MULAVUKADU, ERNAKULAM.	(DIED) LRs IMPLEADED
4. THOMAS, S/O. THOMACHAN, NEDUNILATH HOUSE, THAMMANAM, KOCHI-32 (DIED)
5. VARGHESE, AGED ABOUT 60 YEARS, S/O. THOMACHAN, NEDUNILATH HOUSE, THAMMANAM, KOCHI-32.
6. ANTHAPPAN, AGED ABOUT 60 YEARS, S/O. ANTONY, NEDUNILATH HOUSE, GIRINAGAR.P.O,, ERNAKULAM.
7. GRASON, AGED ABOUT 50 YEARS, S/O. ANTONY, NEDUNILATH HOUSE, GIRINAGAR.P.O, ERNAKULAM.
8. ALOSCIOUS, AGED ABOUT 46 YEARS, S/O. ANTONY, NEDUNILATH HOUSE, GIRINAGAR.P.O, ERNAKULAM.	(DIED) LRs IMPLEADED
9. PHILOMINA, AGED ABOUT 54 YEARS, W/O. XAVIER, KALARIKKAL HOUSE, CONVENT ROAD, PONNURUNNI, VYTTILA.P.O.
10. VERONI, W/O. LATE THOMMAN, NEDUNILATH HOUSE, THAMMANAM, KOCHI-32(DIED)
11. PHILOMINA, AGED ABOUT 56 YEARS, W/O. LATE THOMAS, NEDUNILATH HOUSE, THAMMANAM.P.O, KOCHI-32.
12. ROY, AGED 41 YEARS, S/O. LATE THOMAS, NEDUNILATH HOUSE, THAMMANAM.P.O, KOCHI-32.
13. BEENA, AGED ABOUT 35 YEARS, D/O. LATE THOMAS, NEDUNILATH HOUSE, THAMMANAM.P.O, KOCHI-32.
14. SHEEBA, AGED ABOUT 31 YEARS, D/O. LATE THOMAS, NEDUNILATH HOUSE, THAMMANAM.P.O, KOCHI-32.
15. NELSON, AGED ABOUT 30 YEARS, S/O. LATE THOMAS, NEDUNILATH HOUSE, THAMMANAM.P.O, KOCHI-32.
16. EIPPAN (GIPSON), AGED ABOUT 28 YEARS, S/O. LATE THOMAS, NEDUNILATH HOUSE, THAMMANAM.P.O, KOCHI-32.
ADDL.R17. BEENA ALOSCIOUS, AGED ABOUT 55, W/O LATE ALOSCIOUS, NEDUNILATH HOUSE, HOUSE NO.73, GIRINAGAR P.O., ERNAKULAM - 682020
ADDL.R18. STICKY N.A., S/O LATE ALOSCIOUS, AGED 23 YEARS, NEDUNILATH HOUSE, HOUSE NO.73, GIRINAGAR P.O., ERNAKULAM - 682020.
ADDL.R19. LIYA N.A., D/O LATE ALOSCIOUS, AGED 19 YEARS, NEDUNILATH HOUSE, HOUSE NO.73, GIRINAGAR P.O., ERNAKULAM - 682020
ADDL.R20. M.T.ANTONY, AGED 65 YEARS, S/O LATE THOMAS, METHASSERY HOUSE, PONNARIMANGALAM, MULAVUCAD (P.O.) 682504.
ADDL.R21. M.T.MICHAEL, AGED 60 YEARS, S/O LATE THOMAS, METHASSERY HOUSE, PONNARIMANGALAM, MULAVUCAD (P.O.) 682504.

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RFA.No. 821 of 2008

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ADDL.R22. M.T.FRANCIS (XAVIER), AGED 55 YEARS, S/O LATE THOMAS, METHASSERY HOUSE, NEAR BOAT JETTY, VADUTHALA (P.O.), KOCHI

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ADDL.R23. M.T.JOSHY, KORNELY, AGED 55 YEARS, S/O LATE THOMAS, METHASSERY HOUSE, PONNARIMANGALAM, MULAVUCAD (P.O.) 682504.

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ADDL.R24. M.T.VARGHESE, AGED 55 YEARS, S/O LATE THOMAS, METHASSERY HOUSE, PONNARIMANGALAM, MULAVUCAD (P.O.) 682504.

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ADDL.R25. M.T.JOSEPH, AGED 48 YEARS, S/O LATE THOMAS, METHASSERY HOUSE, PONNARIMANGALAM, MULAVUCAD (P.O.) 682504.

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ADDL.R26. ANNA V.M., AGED 42 YEARS, W/O JAMES, (D/O LATE MARY, LEGAL HEIR OF LATE REJINA, MANAKKATHARA HOUSE, VAIKOM P.O., NEAR KSRTC, PIN 686141

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ADDL.R27. RENCY V.M., AGED 35 YEARS, W/O FRANCIS XAVIER, D/O LATE MARY, POOTHARAPPILLY, S.A.ROAD, VYTTILA P.O., PIN 682 019.

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ADDL.R28. REJEENA V.M., AGED 40 YEARS, W/O SHIBU LUKOSE, D/O LATE MARY, VIRUTHIPARAMBIL HOUSE, MULAVUKAD P.O., PIN 682 504, ERNAKULAM.

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ADDL.R29. SMITHA JOHNSON, AGED 38 YEARS, W/O JOHNSON, D/O LATE SOPHY, LEGAL HEIR OF LATE REJINA, KUNNEL HOUSE, KANJIRAMATTOM P.O., PUTHUSSERY, ERNAKULAM - 682315.

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ADDL.R30. SIBY XAVIER, AGED 35 YEARS, S/O XAVIER, DO LATE SOPHY, VATTATHARA HOUSE, VENNALA P.O., CHALIKKAVATTOM, ERNAKULAM, PIN - 682 028.

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ADDL.R31. SIJU XAVIER, AGED 33 YEARS, S/O XAVIER, D/O LATE SOPHY, METHASSERY HOUSE, PONNARIMANGALAM, MULAVUKAD P.O. 682504.

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(RESPONDENT NOS.11 TO 16 ARE IMPLEADED AS PER ORDER IN I.A. NO.1248/05 AS THE LEGAL HEIRS OF DECEASED THOMAS, WHO IS THE RESPONDENT NO.4 HEREIN)

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THE EIGHTH RESPONDENT DIED AND HIS LEGAL HEIRS ARE IMPLEADED AS ADDL.RESPONDENTS 17-19 VIDE ORDER DATED 19.07.2016 IN IA NO.1747/2014

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THE THIRD RESPONDENT DIED AND HIS LEGAL REPRESENTATIVES ARE IMPLEADED AS ADDL. RESPONDENTS 20 T0 31 VIDE ORDER DATED 19.07.2016 IN IA NO.1471/2016.

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R1-R3 BY ADV. SRI.P.K.JOSE R1-R3 BY ADV. SRI.A.G.TISSARANT R5 BY ADV. SMT.MOLLY JACOB R5 BY ADV. SMT.AYSHA YOUSEFF R6-R8 BY ADV. SRI.T.X.SHAM JOSEPH R9 BY ADV. SMT.M.KABANI DINESH R9 BY ADV. SMT.M.P.SEETHA R11-R16 BY ADV. SRI.P.P.RAMACHANDRAN ADDL.R20-R31 BY ADV. SMT.TESSY JOSE

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. ABRAHAM MATHEW, J.

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R.F.A. No. 821 of 2008

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Dated this the 20^th day of February, 2018

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J U D G M E N T

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This appeal arises from a suit for partition. The predecessor of the parties to the suit was one Thomman, who died in the year 1967. His wife was also a party to the suit. She died during the pendency of the suit. The trial court passed a preliminary decree for partition. This is challenged by defendants 6 to 15.

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2.One of the grounds in the appeal memorandum is that defendants 6, 11 & 15 were not served with summons. This was heard as a preliminary point. It is seen from the B diary that on 19.09.2003, the trial court ordered service of summons on defendants 6,11 & 15 by affixure and posted the case to 22.10.2003. On 22.10.2003 the court recorded service of summons on those defendants by affixure (instead of “D6”, “D3” is mentioned in the B diary). The court set the third defendant (D6?) ex parte as he was absent. It recorded that defendants 11 & 15

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R.F.A. No. 821 of 2008

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..2..

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entered appearance. In fact, they had not entered appearance. They were set ex parte on 18.11.2003. It is seen from the report of the Process Server who affixed summons of defendants 11 & 15 that the summons of defendants 11 & 15 were affixed at Nedunilath House at Thammanam on 20.05.2003. The Process Server who was deputed to serve summons of defendants 11 & 15 earlier had reported that they were married off and the 11^th defendant was residing with her husband at Nettoor and the 15^th defendant was residing with her husband at Aroor. The court failed to take notice of these reports. So, the summons of those defendants were affixed not at their residences. There was no proper service. In other words, defendants 11 & 15 were not served with summons. With regard to the sixth defendant also, there is no valid service. On this ground the decree is liable to be set aside.

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In the result, this appeal is allowed. The preliminary judgment and the decree are set aside. The matter is

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R.F.A. No. 821 of 2008

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..3..

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remanded. The parties who have entered appearance in this court are directed to appear in the trial court on 27.03.2018. The trial court shall issue summons to the other defendants for which the plaintiffs shall take steps without delay. The documents produced by the appellants in this case shall be returned to them. They shall file a written statement within three weeks on their appearance in the lower court.

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Sd/- K. ABRAHAM MATHEW JUDGE

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bka/

Xavier Milton Alias Shaju v. Kochu Thresia

Case brief

What is this about?

What did the court decide?

Xavier Milton Alias Shaju v. Kochu Thresia

Case brief

What is this about?

What did the court decide?

What the court decided

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