Dismissed

Cherath Parambil Kandankutty,(Died) v. Cherath Parambil Gopalan,(Died)

Kerala HC8 Jul 2019RSA/571/2008

Case brief

AI extract

What is this about?

Appeal preferred by the appellant against the First Appellate Court's decree in a partition suit where the plaintiff had executed a release deed. The trial court dismissed the suit, but the first appellate court reinstated it, holding the release deed covered only rights inherited from the father. The High Court held the release deed discharged all rights and dismissed the suit.

What did the court decide?

Preliminary decree for partition was quashed and the suit was dismissed. The decree and judgment of the trial court were restored.

Cherath Parambil Kandankutty,(Died) Vs Cherath Parambil… — Partition | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941

¶5

RSA.No.571 of 2008

¶6

AGAINST THE DECREE & JUDGMENT DATED 15-03-2008 IN AS 34/2002 OF SUB COURT, TIRUR

¶7

AGAINST THE DECREE & JUDGMENT DATED 27-03-2002 IN OS 294/1998 OF MUNSIFF COURT ,PARAPPANANGADI

¶8

APPELLANT/RESPONDENT/FIRST DEFENDANT:

¶9

1 CHERATH PARAMBIL KANDANKUTTY,(DIED) S/O AYYAPPAN, RESIDING AT A.R. NAGAR, AMSOM, DESOM, TIRURANGADI TALUK,, MALAPPURAM DISTRICT. (LEGAL HEIRS IMPLEADED AS ADDL.APPELLANTS 2 TO 8)

¶10

2 ADDL.A2.PADMAVATHI, WIFE OF LATE KANDAN KUTTY, AGED 67 YEARS, CHERATH PARAMB, A.R.NAGAR, 676 305.

¶11

3 ADDL.A3.CHANDRAPRABHA, AGED 50 YEARS,

¶12

WIFE OF SASINDRAN,THAZHEPANIKATHAZHATH, THIRUTHIYAD POST, KOZHIKODE-673 004.

¶13

4 ADDL.A4.RATNA KUMARI, AGED 48 YEARS,WIFE OF MURALIDHARAN,PADMABALANILAYAM,KIZHAKEPADIPARAMBA, MINI KUNNAMANGALAM POST, KOZHIKODE-673 571.(DIED LRs IMPLEADED)

¶14

5 ADDL.A5.BABY,AGED 45 YEARS WIFE OF SASIDHARAN,NADUVEETTIL HOUSE,POST KONDOTTY,NEDIYIRUPPU 673 638.

¶15

6 ADDL.A6.BINDU,WIFE OF RAVINDRAN,AGED 41 YEARS,KANDRAMPALLY, KNMANAM POST,KALPAKANCHERRY-676 551.

¶16

7 ADDL.A7.MURALEEDHARAN,AGED 38 YEARS SON OF LATE KANDANKUTTY,CHERATH PARAMB,A.R.NAGAR-676 305.

¶17

8 ADD.A8.BINA,AGED 35 YEARS

¶18

RSA.No.571 of 2008 2

¶19

WIFE OF UNNI,THOTTUNGAL, YARAMPADI,O.K.MURI,VENGARA-676 519.

¶20

(THE LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO 8 AS PER ORDER DATED 29.03.2016 IN IA.600/2016).

¶21

9 ADDL.A9.MURALIDHARAN C.T. AGED 59 YEARS SON OF

¶22

C.T.BALAN,PADMABALANILAYAM,KIZHAKEPADIPARAMBA KUNNAMANGALAM M.IE.(POST), KOZHIKODE DISTRICT-673 571.

¶23

10 ADDL.A10.GOGO KUMAR C.T., AGED 34 YEARS SON OF LATE RATHNA KUMARI, PADMABALANILAYAM,KIZHAKEPADIPARAMBA KUNNAMANGALAM M.IE.(POST), KOZHIKODE DISTRICT-673 571.

¶24

11 ADDL.A11.ANOOP KUMAR, SON OF

¶25

C.T.BALAN,PADMABALANILAYAM,KIZHAKEPADIPARAMBA KUNNAMANGALAM M.IE.(POST), KOZHIKODE DISTRICT-673 571.

¶26

12 ADDL.A12.ASHWANTH SON OF

¶27

C.T.BALAN,PADMABALANILAYAM,KIZHAKEPADIPARAMBA KUNNAMANGALAM M.IE.(POST), KOZHIKODE DISTRICT-673 571.

¶28

(THE LR'S OF THE DECEASED ADDL.APPELLANT NO.4 ARE IMPLEADED AS ADDL.APPELLANTS A9 TO A12 AS PER ORDER DATED 28.05.2019 IN IA.NO.1/2019).

¶29

BY ADV. SRI.K.A.SALIL NARAYANAN

¶30

RESPONDENTS/APPELLANT/PLAINTIFF & DEFENDANT NO.2:

¶31

1 CHERATH PARAMBIL GOPALAN,(DIED) S/O VELU, A.R. NAGAR AMSOM DESOM,, TIRURANGADI TALUK. ( DIED) LRs IMPLEADED

¶32

2 CHERATH PARAMBIL ARUMUGHAN, S/O KANDAN, A.T. NAGAR AMSOM DESOM,, TIRURANGADI

¶33

RSA.No.571 of 2008 3

¶34

TALUK. (ADDL. R3 TO R6 IMPLEADED) 3 ADDL.R3.JANAKI, WIFE OF GOPALAN, AGED 52 YEARS. 4 ADDL.R4.DIVYA, D/O.OF GOPALAN, AGED 29 YEARS.

¶35

5 ADDL.R5.DEEPU, S/O.OF GOPALAN, AGED 26 YEARS. 6 ADDL.A6.DRISYA, D/O.OF GOPALAN, AGED 20 YEARS. RESPONDENTS 3 TO 6 ARE RESIDING AT 'CHERATH PARAMBIL HOUSE, POST OLAKARA, PUKAYOOR, MALAPPURAM DISTRICT-676 306.

¶36

(THE LRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.R3 TO R6 AS PER ORDER DATED 28.05.2019 IN IA.3115/2014).

¶37

BY ADVS. SRI.HARISH R. MENON – R3 TO R6 SRI.K.P.SUDHEER - R2 SRI.K.T.SHYAMKUMAR- R3 TO R6 SRI.V.C.MADHAVANKUTTY - R2

¶38

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶39

RSA.No.571 of 2008 4

¶40

JUDGMENT

¶41

The first defendant came up with this appeal aggrieved by the reversal of decree and judgment of both the trial court and the first appellate court. It is a suit for partition. The suit was dismissed by the trial court holding that the plaintiff has not reserved any right over the property at the time of Ext.B4 release deed. But in appeal, the decree and judgment of the trial court was set aside and the suit was decreed on the ground that Ext.B4 release deed would come into effect only with respect to the right inherited from the father

¶42

of plaintiff over the property and as such a

¶43

preliminary decree for partition granted, which is under challenge in this appeal.

¶44

RSA.No.571 of 2008 5

¶45

The question came up for consideration is

¶46

whether the First Appellate Court had construed Ext.B4 release deed in its correct perspective and whether the First Appellate Court is justified in granting a preliminary decree for partition.

¶47

Ext.B4 release deed was executed by the plaintiff by which he had released his entire right, title and interest over the property for an agreed consideration of Rs.400/-. Nothing left out with the plaintiff and no right was also reserved

¶48

in his favour at the time when Ext.B4 release deed was executed. The subsequent claim of plaintiff that by birth he had obtained right over the property as the property governed by Mithakshara law and that the said right was not given under Ext.B4 document cannot be accepted, simply on the reason that what is recited and what is given under

¶49

RSA.No.571 of 2008 6

¶50

Ext.B4 release deed is the entire right held by the

¶51

plaintiff over the property as on its date of execution. The First Appellate Court went wrong in applying the legal position based on the factual matrix involved in the case, liable to be set aside and I do so by restoring the decree and judgment of the Trial Court by dismissing the suit.

¶52

Appeal is allowed accordingly. No costs.

Sd/-

P.SOMARAJAN,

JUDGE

// TRUE COPY // PA TO JUDGE

Cherath Parambil Kandankutty,(Died) v. Cherath Parambil Gopalan,(Died)

Case brief

What is this about?

What did the court decide?

Cherath Parambil Kandankutty,(Died) v. Cherath Parambil Gopalan,(Died)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Raman Vs Damayanthi and Others

Managing Director, Vs K.K.Gopalan

Vettikkavala Block Panchayath Vs Vidyarthimithram Press Book Depot

Smt.Kamala Vs Lakshmi (Struck Off)

Thomas and Others Vs Valsamma @ Kunjumol

Jalal and Another Vs Subramoniam and Others