Dismissed

Merlin Justin v. Annie Iyareia @ Shrly and Three Others

Kerala HC11 Nov 2019RFA/402/2008

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal against a preliminary decree for partition of immovable property. The appeal was disposed of based on a mediated settlement where the appellant agreed to pay consideration to respondents for relinquishing their shares, in accordance with Order X Rule 8 CPC and Section 89 read with ADR Rules.

What did the court decide?

Dismissal of the appeal; direction to transmit records to trial court to pass final decree incorporating settlement agreement.

Merlin Justin Vs Annie Iyareia @ Shrly and Three Others — Partition | 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 MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941

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RFA.No.402 OF 2008

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AGAINST THE JUDGMENT AND DECREE IN OS No.61/2003 DATED 22-09-2007 OF PRINCIPAL SUB COURT,KOCHI

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APPELLANT/DEFENDANT:

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MERLIN JUSTIN, AGED 36 YEARS, D/O.LATE P.J.FRANCIS AND W/O.JUSTIN ANTONY, PANIKULAM HOUSE, 11/157, SOUTH THAMARAPARAMBU, KOCHI-682 001

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BY ADV. SRI.R.SREEHARI

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BY ADV. SRI. E.R VENKITESWARAN

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RESPONDENTS/PLAINTIFFS:

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1 SMT.ANNIE IYAREIA @ SHERLY, AGED 46 YEARS, W/O.ROY ANTONY, H.NO.49/1002, SHERLIN COTTAGE, PONEKKARA.

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2 SMT.ANNIE MERCY @ MERCY, AGED 44 YEARS, W/O.O.G.PAUL, ODAM PARAMBIL HOUSE, ARATHUVAZHI, HOSPITAL STOP, NARAKKAL POST, PIN-682 505.

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3 SMT.SHIRNE BEATRISE @ SHERY, AGED 41 YEARS, W/O.P.A.ALPHONSE,HC/DVR, CISF UNIT NTPC., CHOOLA THERUV POST, KAYAMKULAM, PIN-690 506.

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4 SMT.MARINA STEPHEN @ SHEEBA AGED 38 YEARS, W/O.K.J.STEPHEN,, KALLARAKKAL HOUSE, H.NO.8/1510, MANGATTU MUKKU JUNCTION, A.K.ROAD, KOCHI-682 002

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R1 TO R4 BY ADV. SRI.A.K.ALEX R1 TO R4 BY ADV. SRI.C.DEVANAND R1 TO R4 BY ADV. SRI.SUNU P.JOHN R1 TO R4 BY ADV. SRI.K.P.SURESH KUMAR

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA.No.402 OF 2008 2

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JUDGMENT

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Dated this the 11th day of November 2019

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The appeal on hand was filed against the preliminary decree passed in O.S No.61/2003, directing the partition of entire plaint schedule property having an extent of 9.613 cents (3 Ares 88 Sq.meters) in Survey No.971 of Fort Kochi Village, Kochi Taluk, Ernakulam District along with a building and all improvements thereon into 5 equal shares in metes and bounds and allotting four of such shares to the plaintiffs and one share to the defendant.

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The preliminary decree passed in the suit is to the following effect;

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(a) directing partition of the entire plaint schedule property into five equal shares in metes and bounds and allotting four of such shares to the plaintiffs.

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(b) either of the plaintiffs are directed to take out a commission for effecting actual division and separate allocation of their share.

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(c) costs of the suit shall come out of estate.

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The relief of permanent prohibitory injunction sought was dismissed.

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RFA.No.402 OF 2008 3

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During the pendency of the appeal, the parties have attended mediation and arrived at certain modifications in the preliminary decree amicably. The report of the mediator accompanied by a Memorandum of Agreement executed by the parties under Section 89 of the Code of Civil Procedure read with rules 24 & 25 of the Civil Procedure (Alternative Dispute Resolution), Rules, 2008 was filed. The parties to the appeal as well as their respective counsels have signed the memorandum of agreement.

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In the mediation, all parties have agreed to accept the judgment and preliminary decree of the trial court. In tune with the direction in the preliminary decree, parties have agreed for certain modifications and incorporating those, the Memorandum of Agreement was executed. Accordingly, the appellant Smt.Merlin Justin has agreed to pay a total consideration of Rs.42,00,000/(Rupes Fourty Two lakhs only) to the respondents namely Smt. Annie Iyareia @ Annie Irine @ Sherly, Smt Annie Mercy @ Mercy, Smt. Shirne Beatrise @ Shery and Smt. Marina Stephen @ Sheeba, for releasing their 1/5^th right over over the Plaint schedule property. Out of aforesaid 42,00,000/- (Rupees Forty Two Lakhs only), the appellant

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RFA.No.402 OF 2008 4

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agrees to pay Rs.10,50,000/-( Rupees Ten lakhs fifty thousand only) to each of the respondent as consideration for releasing their respective rights. As first installment of the total consideration, the appellant agrees to pay a sum of Rs.5,00,000/- (Rupees Five lakhs only) each to respondents 1 to 4 by way of Demand Draft on or before 30.11.2019 as first installment of the consideration to be paid. The balance amount of Rs. 5,50,000/- (Rupees Five Lakhs Fifty Thousand only) each was agreed to be paid by the appellant to respondents 1 to 4 by way of Demand Draft on or before 30.4.2020. On receipt of the final payment, the respondent shall execute a registered release deed in favour of the appellant by relinquishing their entire right, title and interest over the plaint schedule property. The entire expenses for the registration and stamp duty shall be born out by the appellant.

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In view of the settlement of issues and execution of Memorandum of Agreement incorporating the modified terms, this Court is inclined to dismiss the RFA.

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The registry shall transmit the lower court records to the trial court with immediate effect to enable the court to pass a final decree in tune with the modified terms. The Memorandum of Agreement shall

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RFA.No.402 OF 2008 5

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be made a part of the final decree. The Court fee paid shall be refunded to the parties concerned by whom it was paid.

Sd/-

MARY JOSEPH

JUDGE

JJ/

Merlin Justin v. Annie Iyareia @ Shrly and Three Others

Case brief

What is this about?

What did the court decide?

Merlin Justin v. Annie Iyareia @ Shrly and Three Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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