Allowed

Sreedharan v. Sandhya, D/O.Visalakshy

Kerala HC24 Sept 2019Mat.Appeal/357/2012

Case brief

AI extract

What is this about?

This matrimonial appeal addressed the dismissal of applications to restore a dismissed original petition regarding property declaration due to delay. The Court allowed the appeal, set aside the dismissal order, restored the petition upon payment of costs, and directed impleadment of the deceased respondent's legal heir.

What did the court decide?

The impugned order was set aside; applications allowed on payment of Rs. 5,000/-; original petition restored; legal heir to be impleaded.

Sreedharan Vs Sandhya, D/O.Visalakshy — Succession and Inheritance | Kerala HC (2019)

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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.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941

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Mat.Appeal.No.357 OF 2012

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AGAINST THE ORDER IN OP 350/2007 DATED 20-03-2012 OF FAMILY COURT, ALAPPUZHA

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APPELLANT/PETITIONER:

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SREEDHARAN

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S/O.NARAYANAN,MUNDACKAL HOUSE,ARAKKULAM VILLAGE, THODUPUZHA TALUK, EDADU, MUTTOM KARA.

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BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH

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RESPONDENT/RESPONDENT:

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1 * SANDHYA, D/O.VISALAKSHY (DIED) CHAPRAYIL HOUSE,THEKKEKARA VILLAGE,MAVELIKKARA TALUK,PONAKAM MURI.

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2 VINEESH

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AGED 21 YEARS, S/O.LATE VIJAYAKUMAR, CHAPRAYIL HOUSE, PUNNAMOODU.P.O., MAVELIKKARA, ALLEPPY (DIST) 690 101.

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(ADDITIONAL RESPONDENT IMPLEADED AS PER ORDER DATED 19.9.19 IN IA 1866/18 IN MAT.APPEAL 357/12.)

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R1 BY ADV. SMT.A.SALINI LAL R1 BY ADV. SRI.R.SUNIL KUMAR

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal.No.357/2012

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JUDGMENT

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Dated this the 24th day of September 2019

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SHAFFIQUE, J

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This appeal is filed against the order dated 20.3.2012 in I.A.Nos.1420/2010 and 1421/2010 in O.P.No.350/2007 passed by the Family Court, Alappuzha. The original petition was filed by the appellant seeking for a declaration that plaint A schedule property absolutely belongs to him. He sought for a declaration that he is the owner of the A Schedule property, after declaring that cancellation deed No.2119/2005 of Mavelikkiara SRO executed by the respondent will not affect his title to the property. It is contended that though gift deed No.2628/2003 had been executed by the respondent transferring A schedule property in his name, the same was cancelled as per deed No.2119/2005 of Mavelikkara SRO. He also sought for a declaration that he is the absolute owner of C and D schedule building constructed in A and B schedule properties. He also sought for a declaration that he is entitled to one half share in E schedule property which is purchased in the joint names of the couple.

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His contention was that the respondent got six cents of property as family share and the couple decided to construct a house.

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Mat.Appeal.No.357/2012

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Accordingly, on 27.11.2003 three cents of the property was given to the appellant as per gift deed No.2628/2003 of Mavelikkara SRO. A building was constructed expending his money in the entire six cents of land. He had expended about Rs.11,00,000/- in the property. A schedule is the 3 cents gifted in his name and B schedule is the 3 cents in the ownership of the respondent. The building was constructed in A and B schedule which is shown as C and D schedule.

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In fact, they were living together for quite sometime and thereafter issues had arisen and after construction of the building, she cancelled the gift deed. According to the appellant/petitioner, he is entitled for a declaration as sought for. However, the original petition came to be dismissed on account of non appearance. He filed I.A.Nos. 1420 and 1421 of 2010 for restoring the petition on file after condoning the delay of 179 days. The Family Court dismissed the said applications.

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One of the reasons stated by the Family Court for dismissing the applications is that the petitioner contended that he had come to know about the dismissal of the petition only on 19.4.2010. But it was noticed that there was an other dispute between the parties namely, C.C.No.564/2006 pending before the JFCM-I, Mavelikkara. It was listed for hearing on several days and it was posted on 23.7.2010. Therefore it is observed that there is every possibility that the dismissal of the original petition had come to the notice of the appellant and

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Mat.Appeal.No.357/2012

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accordingly it was observed that the delay has not been properly explained and the applications are dismissed.

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The learned counsel for the appellant submits that when substantial rights are involved in the matter and the delay was only 179 days, which was properly explained, the court below ought to have allowed the applications.

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The respondent died and her son had been impleaded as the additional respondent. It is true that there was a pending case between the couple during the relevant time. But when substantial rights are involved in a lis, the court will have to take a lenient approach while considering the application to condone delay. In this case there was a delay of 179 days in filing a petition to restore the original petition. The appellant had stated that he had come to know about the dismissal only on a later date. At least, the application ought to have been allowed on terms.

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Taking into consideration the aforesaid factual situation, we are of the view that an opportunity should be granted to the appellant to prosecute his case and accordingly, this appeal is allowed as under: (i) The order dated 20.3.2012 in I.A.Nos.1420/2020 and 1421/2010 in O.P.No.350/2007 is set aside.

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(ii) The applications are allowed on condition of payment of cost of Rs.5,000/-, to be deposited before the Family Court within a period of three weeks from the date of receipt of a copy of this

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Mat.Appeal.No.357/2012

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judgment. If the cost is deposited, the respondent shall be entitled to receive the same.

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(iii) On payment of cost, the Family Court shall restore the original petition on file.

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(iv) The petitioner/appellant herein shall also file necessary application to implead the legal heir of the deceased respondent and thereafter the Family Court shall endeavour to dispose of the matter in accordance with law, as expeditiously as possible.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

N.ANIL KUMAR

True copy