Remanded

Baby Thomas v. Ancy Mathew

Kerala HC5 Feb 2018RSA/503/2017

Case brief

AI extract

What is this about?

A second appeal concerning a partition suit. The High Court held that the lower appellate court erred by failing to consider the rights of the legal heirs of a deceased party who was impleaded during the trial. Consequently, the judgment and decree were set aside and the matter remitted for fresh disposal.

What did the court decide?

The judgment and decree in A.S Nos. 223 and 224 of 2011 are set aside and remitted for fresh disposal. Appellate liability not fixed.

Baby Thomas Vs Ancy Mathew — 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 A.HARIPRASAD

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MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939

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RSA.No. 503 of 2017 (B)

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AGAINST THE JUDGMENT AND DECREE DATED 09-11-2016 IN AS 223/2011 of ADDL.DISTRICT COURT - I,KOTTAYAM. AGAINST THE JUDGMENT AND DECREE DATED 25-06-2011 IN OS 430/2009 of ADDL.SUB COURT, KOTTAYAM.

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APPELLANT/APPELLANT/2ND DEFENDANT :

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BABY THOMAS, AGED 70 YEARS, S/O. THOMAS, VATTAKUZHY, VAZHOOR EAST P.O., VZHOOR KARA, VAZHOOR VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.

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BY ADVS.SRI.BECHU KURIAN THOMAS (SR.) SRI.LEO LUKOSE.

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RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1, 3, 4 :

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1. ANCY MATHEW AGED 60 YEARS, W/O. P.J. MATHEW KONNACKAL, KOODALLOOR KARA, KIDANGOOR KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT - 686 572.

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2. GRACY JOHN, AGED 77 YEARS, W/O. JOHN, THEKEL, MANALADYKARA, MANALADY P.O., THENKARA VILLAGE, MANNARKADU TALUK, PALAKKAD DISTRICT - 678 582. 3. VALSAMMA THOMAS, AGED 73 YEARS, W/O. THOMAS, VALYALATT ANCHIL (H), PULINKUNNU P.O., KAYALPPURAM KARA,PULIMKUNNU VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT - 688 502. 4. MATHEW KUTTY V.T. AGED 62 YEARS, S/O. THOMAS, VATTAKUZHY, VAZHOOR EAST P.O., VAZHOOR KARA, VAZHOOR VILLAGE, 9TH MILE, CHANGANACHERRY TALUK HAVING OFFICE ADDRESS AT SKYLINE TOURS AND TRAVELS, DAIVASAHAYAM BUILDING PONKUNNAM, KOTTAYAM, KOTTAYAM DISTRICT -686 506. R1 BY ADVS. SRI.V.R..GOPU. SRI.J.NARAYANA PILLAI

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05-02-2018, ALONG WITH RSA NO.534 OF 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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amk

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A.HARIPRASAD, J.

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R.S.A Nos.503 & 534 of 2017

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Dated this the 5th day of February, 2018.

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C O M M O N J U D G M E N T

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These appeals are filed by the second and fourth defendants

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in O.S No.430 of 2009 on the file of the Additional Sub Court,

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Kottayam. Respondents are the plaintiff and other defendants.

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The suit is one for partition. The trial court decreed the suit

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against which two separate appeals were preferred before the

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Additional District Court- I, Kottayam. Those appeals were heard and

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decided by the District Judge, which were numbered as A.S Nos.223

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and 224 of 2011.

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It is submitted by the learned counsel for the appellants

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that pending the appeal, second respondent in A.S Nos.223 and 224 of

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2011 expired. Her legal heirs were sought to be impleaded by filing

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R.S.A Nos.503 & 534 of 2017 2

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applications in both the appeals. It is submitted by the learned counsel

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for the first respondent/plaintiff that actually they were impleaded in

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the first appeal as additional fifth and sixth respondents and they entered appearance through a counsel by filing vakalaths. But that fact has not been reflected in the judgments passed by the lower appellate

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court. In the cause title, name of the deceased second defendant is

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mentioned without showing that her legal representatives were

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impleaded. Further, in the decreetal portion of the judgment, the lower appellate court did not mention anything about the legal effect of impleadment of the legal representatives of deceased second respondent, which should have been mentioned because they are necessary parties in a partition suit.

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Having regard to the facts and circumstances, I find that the

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lower appellate court had committed a serious error in not considering

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R.S.A Nos.503 & 534 of 2017 3

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the rights of the necessary parties in a suit for partition and the decreetal portion is vitiated for that reason alone. Without going into merits of the matter, the judgment and decree in A.S Nos.223 and 224

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of 2011 passed by the Additional District Court - I, Kottayam, are hereby set aside. The matter is remitted back to the lower appellate court for a fresh disposal after considering the rights and liabilities of

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additional respondents 5 and 6 in both the appeals.

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Parties shall appear before the Additional District Court- I,

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Kottayam on 01-03-2018.

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The appeals shall be disposed on or before 30th June, 2018.

Sd/-

A.HARIPRASAD,

JUDGE.

amk

//True copy//

P.A to Judge

Baby Thomas v. Ancy Mathew

Case brief

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Baby Thomas v. Ancy Mathew

Case brief

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