Allowed

P.X.Sebastian v. P.X.Antony

Kerala HC5 Feb 2018RSA/818/2017

Case brief

AI extract

What is this about?

The High Court dismissed the regular second appeals (R.S.A.Nos. 818/2017, 137/2018, 138/2018) arising from partition suits involving a Will. However, the Court directed time for the appellant to vacate the house on payment of compensation, subject to filing an affidavit of conditional undertaking.

What did the court decide?

Appellant allowed time to vacate house by 31.5.2018. Appellant to file affidavit undertaking to vacate and pay compensation. 1st respondent permitted to deposit Rs. 2 lakhs. Pending applications dismi

P.X.Sebastian Vs P.X.Antony — 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. 818 of 2017

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AGAINST THE JUDGMENT & DECREE DATED 05.07.2017 IN AS 56/2016 of ADDITIONAL DISTRICT COURT - VII, ERNAKULAM

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AGAINST THE JUDGMENT & DECREE DATED 24.11.2015 IN OS 144/2013 of SUB COURT, ERNAKULAM

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APPELLANT/APPELLANT/4TH DEFENDANT

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P.X.SEBASTIAN AGED 63 YEARS, S/O.LATE FRANCIS XAVIER AND LATE MARY XAVIER, ORION VILLA, MARIAKUTTY JOHN ROAD, ERNAKULAM VILLAGE, KANAYANNOOR TALUK, KALOOR, PIN - 682 018.

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BY ADVS.SRI.SANTHEEP ANKARATH SRI.JOSEPH GEORGE

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RESPONDENTS/RESPONDENTS/PLAINTIFF/DEFENDANTS 1 TO 3, 5 & 6:

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1. P.X.ANTONY S/O.LATE FRANCIS XAVIER AND LATE MARY XAVIER, RETD. KSRTC EMPLOYEE, AGED 59 YEARS, ORION VILLA, MARIAKUTTY JOHN ROAD,KOCHI, PIN -682018 PRESENTLY RESIDING AT C.C NO.1/1551, SOUTH THAMARAPARAMBU, K.B JOCOBS ROAD, FORTH KOCHI, PIN - 682 001.

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2. P.X LOUIS,

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S/O.LATE FRANCIS XAVIER AND LATE MARY XAVIER,AGED 69 YEARS, BUSINESS, PRESENTLY RESIDING AT NO.17, ANUGRAGHA RESIDENCE ASSOCIATION, OPPOSITE PULICKAL(ENTERPRISES (SAW MILL, K.K.PADMANABHAN ROAD, ERNAKULAM VILLAGE, KANAYANNOOR TALUK, KOCHI PIN - 682 018

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3. P.X. JAMES, S/O.LATE FRANCIS XAVIER AND LATE MARY XAVIER,AGED 65 YEARS,BUSINESS, RESIDING AT 'AVITTYOM' OPPOSITE ST. ANTONY'S CHURCH, (BEHIND ALL INDIA RADIO STATION), KAKKANAD, KANAYANOOR TALUK, KOCHI - 682 030.

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RSA.No. 818 of 2017

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4. STELLA, D/O.LATE FRANCIS XAVIER AND LATE MARY XAVIER,AND W/O. PAILEE, AGED 64 YEARS, RETD HEADMISTRESS, PULIPARAMBIL HOUSE, MUNDAMVELI P.O, RAMESWARAM VILLAGE, KOCHI TALUK, KOCHI -PIN - 682 007.

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5. ALICE,

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D/O.LATE FRANCIS XAVIER AND LATE MARY XAVIER, AND W/O. JACKY @ EGIN, AGED 57 YEARS, SCHOOL HEADMISTRESS, KANAKKASSERY HOUSE, OCHANTHURUTHU P.O,

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VYPIN, KOCHI TALUK, PIN - 682 508.

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6. SHEELA,

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D/O.LATE FRANCIS XAVIER AND LATE MARY XAVIER, AND W/O. ANTONY A.J(ANJATTUPARAMBIL), AGED 57 YEARS,TEACHER FACT (COCHIN DIVISION), QUARTERS NO. 401/4, NEAR POST OFFICE, AMBALAMEDU P.O, KANAYANNOOR TALUK, KOCHI, PIN - 682 303.

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7. AROHI PADAMADAN,

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AGED 80 YEARS, S/O. LATE THOMAS, PADAMADAN HOUSE, THRIKANARVATTOM DESOM, ERNAKULAM VILLAGE, ERNAKULAM, RESIDING AT M-95, CHANGAMPUZHA NAGAR, KALAMASSERY -- 682 033 ERNAKULAM DISTRICT.

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R1 BY ADVS.SRI.M.P.RAMNATH

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SRI.P.RAJESH (KOTTAKKAL) SRI.M.VARGHESE VARGHESE SMT.S.SANDHYA SRI.BEPIN PAUL SRI.SHALU VARGHESE SRI.S.DEEPAK

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05-02-2018, ALONG WITH RSA 137/2018 AND RSA 138/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A. HARIPRASAD, J.

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R.S.A.No.818 of 2017

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and R.S.A.Nos.137 & 138 of 2018

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Dated this the 5^th day of February, 2018

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JUDGMENT

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Heard the learned counsel for the appellant in all the three appeals and the contesting respondents.

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These appeals arise out of three suits jointly tried. For the sake of convenience, parties are referred to in their ranks in O.S.No.144 of 2013 on the file of the Sub Court, Ernakulam, which was taken as the leading case. Appellant in all these cases is the 4^th defendant in the above suit. O.S.No.144 of 2013 is a suit for mandatory and permanent prohibitory injunction reliefs and for partition of plaint D schedule movable properties. Case of the plaintiff (1^st respondent in the appeal) is that their mother had duly executed and registered a Will in respect of her properties. Ext.A3 is the Will marked in the suit. According to the 1^st respondent/plaintiff, the property included in the Will devolved on him after the death of their mother.

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RSA Nos.818 of 2017 & 137 & 138 of 2018 2

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The appellant and other defendants in the suit opposed the suit contending that the Will propounded by the 1^st respondent is not genuine. Further, other siblings of the appellant filed O.S.No.38 of 2013 for partition of bank deposits held in the name of thier mother, contending that the bank deposits were not included in the Will. That suit was not contested by the 1^st respondent (plaintiff in O.S.No.144 of 2013) and the suit was deceed. Siblings of the appellant filed O.S.No.84 of 2013 for partition of the immovable property belonged to their mother, contending that there was no Will in existence. All the suits were tried together. The suit filed by the 1^st respondnet was also decreed by the trial court and O.S.No.38 of 2013 was also decreed on consent of the 1^st respondent and O.S.No.84 of 2013 was dismissed.

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The appellant preferred an appeal as A.S.No.56 of 2016 before the District Court, Ernakulam. It is pertinent to note that the decree in O.S.No.84 of 2013 was not challenged. It is settled law that the party who suffered an adverse decree in O.S.No.84 of 2013 should have challenged it, otherwise it would operate as res judicata in respect of the appeal filed from one of

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RSA Nos.818 of 2017 & 137 & 138 of 2018 3

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the cases jointly tried. The lower appellate court rightly dismissed the appeal filed in O.S.No.144 of 2013 as barred by res judicata agaist which R.S.ANo.818 of 2017 is filed.

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On getting a legal advice, the appellant preferred two appeals against O.S.Nos.38 and 84 of 2013 before the lower apellate court with a petition to condone the delay of nearly 600 days. The appeals were dismissed by the lower appellate court finding that there was no sufficient cause for condoning the delay. On that finding, the delay condonation petition and consequenty, the appeals were dismissed.

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Learned counsel for the contesting 1^st respondent submitted that even in the execution proceedings, the appellant had participated and he was fully aware of the fact that the decree in O.S.No.84 of 2013 operated against him. Still, he did not choose to file a first appeal in time. Subsequent developments in the litigation also revealed that there was no sufficient cause in not filing the appeal in time. Rightly the court below dismissed the appeals. I find no reason to interefere on merits.

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Having regard to the facts and circumstances of the case

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RSA Nos.818 of 2017 & 137 & 138 of 2018 4

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and that the appellant is the brother of the 1^st respondent, I feel that some time can be given to the appellant to vacate the house described in the schedule to O.S.No.144 of 2013. The appellant may occupy the house till 31.5.2018 on condition that he shall file an affidavit unconditionally undertaking to vacate the house on 31.5.2018. The appellant shall continue to pay the same amount as compensation for use and occupation as provided in the decree. If the appellant fails to file the affidavit before the trial court in two weeks, the court below is free to execute the decree as if no direction has been passed in this case. The 1^st respondent is permitted to deposit Rupees Two lakhs directed to be paid as per Ext.A3 Will, before the execution court within two weeks.

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All pending interlocutory applications in all the three appeals will stand dismissed.

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A. HARIPRASAD JUDGE

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P.X.Sebastian v. P.X.Antony

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P.X.Sebastian v. P.X.Antony

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