Allowed

Thatha v. P.C.Arunachalam Thankappa

Kerala HC29 Sept 2021CO/140/2016

Case brief

AI extract

What is this about?

The appeal challenged the preliminary decree for partition which included 2.25 acres of land purchased by the 1st defendant under sale deeds Exts.B1 and B2. The property had been partitioned between the plaintiff's ancestors and the defendant in 1953. The court held the inclusion was an omission and modified the decree.

What did the court decide?

The preliminary decree is modified to exclude the property covered by Exts.B1 and B2 (2.25 acres) from the partition schedule. The cross objection is dismissed.

Thatha Vs P.C.Arunachalam Thankappa — Partition | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

WEDNESDAY, THE 29^TH DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943

¶5

RFA NO. 521 OF 2016

¶6

AGAINST THE JUDGMENT AND DECREE DATED 30.03.2016 IN OS 108/2006 OF SUB COURT, OTTAPPALAM, PALAKKAD

¶7

APPELLANT/1ST DEFENDANT:

¶8

1 P.C.ARUNACHALAM @ THANKAPPA AGED 75 YEARS S/O. LATE CHAMI, PALAKKAL HOUSE, POTTASSERI POST, MANNARKKAD TALUK, PALAKKAD DISTRICT.(DIED)

¶9

ADDITIONAL APPELLANTS 2 TO 8 IMPLEADED 2 JAYANTHI, AGED 54 YEARS D/O LATE.P.C.ARUNACHALAM @ THANKAPPA AND W/O.BHASKARAN, MEPPATT HOUSE, THENKARA POST, MANNARKKAD TALUK.

¶10

3 JAYAJA, AGED 50 YEARS D/O LATE.P.C.ARUNACHALAM @ THANKAPPA AND W/O.KUMARAN, THODUKATTIL HOUSE, EZHAKKAD, KONGAD POST, PALAKKAD.

¶11

4 JALAJA AGED 46 YEARS D/O LATE.P.C.ARUNACHALAM @ THANKAPPA AND W/O.A.K.RAJAN, EDAPARAMBIL HOUSE, KALLADIKODE POST, MANNARKKAD TALUK.

¶12

5 JAYA AGED 42 YEARS D/O LATE.P.C.ARUNACHALAM @ THANKAPPA AND W/O.RADHAKRISHNAN, MANNEYANKAD, ALATHOOR POST, PALAKKAD DISTRICT.

¶13

6 JAYAPRY AGED 40 YEARS D/O LATE.P.C.ARUNACHALAM @ THANKAPPA AND W/O.RATHEESH, THENACHAMPULAM HOUSE,

¶14

RFA Nos.521/2016 & CO.No.140/2016

¶15

¶16

KARIYANKODE POST, PALAKKAD DISTRICT.

¶17

7 JAYASMITHA AGED 38 YEARS D/O LATE.P.C.ARUNACHALAM @ THANKAPPA AND W/O.MANIKANDAN, PALAKKAL HOUSE, POTTASSERI POST, PALAKKAD DISTRICT.

¶18

8 JAYANISHA, AGED 34 YEARS D/O LATE.P.C.ARUNACHALAM @ THANKAPPA AND W/O.THANKARAJ, KEETTUMARU HOUSE, TRIKKALUR POST, MANNARKKAD TALUK

¶19

LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED IN THE PARTY ARRAY AS ADDITIONAL APPELLANTS 2 TO 8 VIDE ORDER DATE 11.1.19 IN IA 1/19.

¶20

BY ADVS. SRI.R.SREEHARI SRI.SACHIN VYAS

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RESPONDENTS/PLAINTIFFS 1 TO 5, 2ND DEFENDANT AND SUPPL. DEFENDANTS 3 TO 20:

¶22

1 THATHA 64 YEARS, W/O. K SIVARAMAN, SREERAM NIVAS, KONGAPADAM, AKATHETHARA AMSOM,AND POST, PALAKKAD TALUK AND DISTRICT PIN- 678 008

¶23

2 K.V RAJAN 58 YEARS, S/O. LATE KUNHILAKSHMI

¶24

3 K.V KRISHNANKUTTY 50 YEARS, S/O. LATE KUNHILAKSHMI

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4 K.V MOHANAN 45 YEARS, S/O. LATE KUNHILAKSHMI

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5 K.V KANNAN 40 YEARS, S/O. LATE KUNHILAKSHMI 2 TO 5 ARE RESIDING AT KANGATH HOUSE, MELAMURI,

¶27

RFA Nos.521/2016 & CO.No.140/2016

¶28

¶29

THENKARA POST, MANNARKKAD, TALUK, PALAKKAD DISTRICT. PIN- 678 582.

¶30

6 P.C. RAMAKRISHNAN AGED 68 YEARS, S/O. LATE CHAMI, PALAKKAD HOUSE, POONCHOLA POST, POTTASSERI, VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT. PIN- 678 598.

¶31

7 MUHAMMED KHALEEL 65 YEARS, S/O. MUHAMMED HAJI, MANNISSEERI KOTTARAVALIYA PEEDIKAKKAL, PERUM BADARI DESOM, ARAKURISSI AMSOM, PERUMBADARI POST, MANNARKKAD TALUK, PIN- 678 762.

¶32

8 SAROJINI AGED 50 YEARS, W/0 RAMAN, THAZHATHEVEETIL, KUMBALAMCHOLA, POTTASSERRI AMSOM AND POST, MANNARKKAD TALUK, PIN- 678 598.

¶33

9 DEVAN AGED 41 YEARS, S/O. RAMANKUTTY, POOVATHINKAL, KALLAMALA, POTTASSERI AMSOM AND POST, MANNARKKAD TALUK PIN- 678 598.

¶34

10 PANKAJAM AGED 43 YEARS, W/O. CHANDRAN, KAROOTH HOUSE, KUMBALAMCHOLA, POTTASSERI AMSOM AND POST, MANNARKKAD TALUK PIN- 678 598.

¶35

11 MANI AGED 41 YEARS, S/O. CHAMIYAR, MANGOTMARE, KALLAMALA, POTTASSERY POST, MANNARKKAD TALUK PIN- 678 598.

¶36

12 K.K. RAJAN AGED 45 YEARS, S/O. AMBALAM, KOTTAYI THUPPANAD, KALLADIKODE POST, MANNARKKAD TALUK, PALAKKAD DISTRICT,. PIN- 678 596

¶37

RFA Nos.521/2016 & CO.No.140/2016

¶38

¶39

13 K. RADHAKRISHNAN 39 YEARS, S/O. KESAVAN, MANNAYANKADU HOUSE, THENNARKULAMBU, NELLIYAMKUNNAM, ALATHUR POST, PALAKKAD DIST. PIN- 678 541.

¶40

14 T.C RATHEESH

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40 YEARS, S/O. CHELLAN, THENEECHAMPURAM, KALIYAMKODE POST, KOTTAYI, PALAKKAD PIN- 678 572.

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15 JAYACHANDRAN 45 YEARS, KUNNAMKULATHIL, MANTHONI, POONCHOLA, POTTASSERI POST, MANNARKKAD TALUK PIN- 678 598.

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16 MANI

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41 YEARS, S/O. MADHAVAN, PARAYIL HOUSE, AMBALAPPADI, POONCHOLA, POTTASSERI POST, MANNARKKAD TALUK PIN- 678 598.

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17 RUGMINI

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W/O. MANI @ RAVINDRAN, PARAKKAL HOUSE, AMBALAPPADI, POOCHOLA, POTTASSERI POST, MANNARKKAD TALUK PIN- 678 598.

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18 USHA 40 YEARS, D/O. LATE RAMAN.

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19 MANJULA

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38 YEARS, D/O. LATE RAMAN.

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20 REKHA

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35 YEARS, D/O. LATE RAMAN.

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21 SOORAJ

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34 YEARS, S/O LATE RAMAN.

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22 ANILKUMAR 33 YEARS, S/O. LATE RAMAN.

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23 THANKAMALU 84 YEARS, M/O LATE RAMAN,

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18 TO 23 ARE RESIDING AT THAZHATHEVEETTIL, MUMBALACHOLA, POTTASSERI AMSOM AND POST,

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¶58

RFA Nos.521/2016 & CO.No.140/2016

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MANNARKKAD TALUK, PIN- 678 598. (DIED)

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(IT IS RECORDED THAT THE 23RD RESPONDENT DIED AND HER LEGAL HEIRS ARE ALREADY IN THE PARTY ARRAY AS RESPONDENTS 8, 18 TO 22, VIDE ORDER DATED 29.01.2020 IN MEMO DATED 27.09.2016.

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24 JANAKI

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W/O. MANI, MANGATTUMARE, KALLAMALA, POTTASSERI POST, MANNARKKAD TALUK PIN- 678 598.

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R1-R5 BY ADVS.

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SRI.ARUN MATHEW VADAKKAN SRI.SANTHEEP ANKARATH

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R5 BY ADV. SRI.K.RAVI PARIYARATH

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R8,R10,R11,R16-R22& R24 BY ADV.

¶67

SRI.P.JAYARAM

¶68

R12-R14 BY ADV.

¶69

SRI.K.RAJESH SUKUMARAN

¶70

THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 29.09.2021, ALONG WITH CO.140/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶71

RFA Nos.521/2016 & CO.No.140/2016

¶72

¶73

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

¶74

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶75

WEDNESDAY, THE 29^TH DAY OF SEPTEMBER 2021 / 7TH ASWINA,

¶76

1943

¶77

CO NO. 140 OF 2016

¶78

AGAINST THE JUDGMENT AND DECREE DATED 30.03.2016 IN OS 108/2006 OF SUB COURT, OTTAPPALAM, PALAKKAD

¶79

CROSS OBJECTORS/RESPONDENTS 1 TO 5/PLAINTIFFS:

¶80

1 THATHA AGED 64 YEARS, W/O. K. SIVARAMAN, SREERAM NIVAS, KONGAPADAM, AKATHETHARA AMSOM AND POST PALAKKAD TALUK AND DISTRICT. PIN-678 008.

¶81

2 K.V. RAJAN AGED 58 YEARS, S/O. LATE KUNHILAKSHMI, KANGATH HOUSE, MELAMURI, THENKARA POST, MANNARKKAD TALUK, PALAKAD DISTRICT, PIN- 678 582.

¶82

3 K.V.KRISHNANKUTTY AGED 50 YEARS, S/O. LATE KUNHILAKSHMI, KANGATH HOUSE, MELAMURI, THENKARA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN-678 582.

¶83

4 K.V.MOHANAN AGED 45 YEARS, S/O. LATE KUNHILAKSHMI, KANGATH HOUSE, MELAMURI, THENKARA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN-678 582.

¶84

5 K.V.KANNAN AGED 40 YEARS, S/O. LATE KUNHILAKSHMI, KANGATH HOUSE, MELAMURI, THENKARA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN-678 582.

¶85

BY ADV SRI.SANTHEEP ANKARATH

¶86

RFA Nos.521/2016 & CO.No.140/2016

¶87

¶88

RESPONDENTS/APPELLANTS & RESPONDENTS 6 TO 24/ DEFENDANTS:

¶89

1 P.C.ARUNACHALAM THANKAPPA AGED 75 YEARS, S/O. LATE CHAMI, PALAKKAL HOUSE, POTTASSERI POST, MANNARKKAD TALUK, PALAKKAD DISTRICT.

¶90

2 P.C. RAMAKRISHNAN AGED 68 YEARS, S/O. LATE CHAMI, PALAKKAL HOUSE, POONCHOLA POST, POTTASSERI VILLAGE, MANNARKKAD TALUK, PALAKAD DISTRICT, PIN-678 598.

¶91

3 MUHAMMED KHALEEL AGED 65 YEARS, S/O. MUHAMMED HAJI, MANNISSEERI KOTTARAVALIYA PEEDIKKAL, PERUMBADARI DESOM, ARAKURISSI AMSOM, PERUMBADARI POST, MANNARKKAD TALUK, PIN- 678 762.

¶92

4 SAROJINI AGED 50 YEARS, W/O. RAMAN, THAZHATTHEVEETIL, KUMBALAMCHOLA, POTTASSSERI AMSOM AND POST, MANNARKKAD TALUK-678 598.

¶93

5 DEVAN

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AGED 41 YEARS, S/O. RAMANKUTTY, POOVATHINKAL, KALLAMALA, POTTASSERI AMSOM AND POST, MANNARKKAD, PALAKKAD DISTRICT, PIN-678 598.

¶95

6 PANKAJAM AGED 43 YEARS, W/O. CHANDRAN, KAROOTH HOUSE, KUMBALMCHOLA, POTTASSERI AMSOM AND POST, MANNRKKAD TALUK, PIN-678 598.

¶96

7 MANI AGED 41 YEARS, S/O. CHAMIYAR, MANGOTMARE, KALLAMALA, POTTASSERI POST, MANNARKKAD TALUK, PIN-678 596.

¶97

RFA Nos.521/2016 & CO.No.140/2016

¶98

¶99

8 K.K. RAJAN AGED 45 YEARS, S/O. AMBALAM, KOTTAYI THUPPANAD, KALLADIKODE POST, MANNARKKAD TALUK, PALAKKAD DISTRICT. PIN-678 541.

¶100

9 K. RADHAKRISHNAN AGED 39 YEARS, S/O. KESAVAN , MANNAYANKADU HOUSE , THENNARKULAMBU, NELLIYAMKUNNAM, ALATHUR POST, PALAKKAD DISTRICT, PIN-678 541.

¶101

10 T.C. RATHEESH AGED 40 YEARS, S/O. CHELLAN, THENEECHAMPURAM, KARIYAMKODE POST, KOTTAYI, PALAKKAD, PIN-678582.

¶102

11 JAYACHANDRAN AGED 45 YEARS, KUNNAMKULATHIL, MANTHONI, POONCHOLA, POTTASSERI POST, MANNARKKAD TALUK, PIN-678 598.

¶103

12 MANI AGED 41 YEARS, S/O. MADHAVAN, PARAYIL HOUSE, AMBALAPPADI, POONCHOLA, POTTASSSERI POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN-678 598.

¶104

13 RUGMINI W/O. MANI@ RAVINDRAN, PARAKKAL HOUSE, AMABALAPPADI, POONCHOLA, POTTASSSERI POST, MANNARKKAD TALUK, PALAKKAD DISTRICT , PIN-678 598.

¶105

RFA Nos.521/2016 & CO.No.140/2016

¶106

¶107

14 USHA AGED 40 YEARS, D/O. LATE RAMAN, THAZHATHEVEETTIL, MUMBALACHOLA, POTTASSSERI AMSOM AND POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN-678 598.

¶108

15 MANJULA AGED 38 YEARS, D/O. LATE RAMAN, THAZHATHEVEETTIL, MUMBALCHOLA TALUK, POTTASSSERI AMSOM AND POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN-678 598.

¶109

16 REKHA AGED 35 YEARS, D/O LATE RAMAN, THAZHATHEVEETTIL, MUMBALANCHOLA, POTTASSERI AMSOM AND POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN- 678 598.

¶110

17 SOORAJ AGED 34 YEARS, S/O. LATE RAMAN, THAZHATHEVEETTIL, MUMBALACHOLA, POTTASSERI AMSOM AND POST, MANNARKKAD TALUK, PALAKKAD DISTRICT. PIN-678 598.

¶111

18 ANILKUMAR AGED 33 YEARS, S/O. LATE RAMAN, THAZHATHEVEETTIL, MUMBALACHOLA, POTTASSERI AMSOM AND POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN-678 598.

¶112

19 THANKAMALU 84 YEARS, M/O. LATE RAMAN, THAZHATHEVEETTIL, MUMBALACHOLA, POTTASSERI AMSOM AND POST, MANNARKKAD TALUK,

¶113

RFA Nos.521/2016 & CO.No.140/2016

¶114

¶115

PALAKKAD DISTRICT, PIN-678 598.

¶116

20 JANAKI W/O. MANI, MANJATTUMARA, KALLAMALA, POTTASSERI POST, MANNARKKAD TALUK, PIN-678 598.

¶117

ADDITIONAL RESPONDENTS 21 TO 27 IMPLEADED

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21 JAYANTHI,, AGED 54 YEARS D/O. LATE P.C.ARUNACHALAM @ THANKAPPA AND W/O.BHASKARAN, MEPPATT HOUSE, THENKARA POST, MANNARKKAD TALUK.

¶119

22 JAYAJA AGED 50 YEARS D/O.LATE P.C.ARUNACHALAM @ THANKAPPA AND W/O.KUMARAN, THODUKATTIL HOUSE, EZHAKKAD, KONGAD POST, PALAKKAD PIN 678631.

¶120

23 JALAJA, AGED 46 YEARS D/O.LATE P.C.ARUNACHALAM @ THANKAPPA AND W/O.A.K.RAJAN, EDAPARAMBIL HOUSE, KALLADLKODE POST, MANNARKKAD TALUK., PIN 678596.

¶121

24 JAYA, AGED 42 YEARS D/O.LATE P.C.ARUNACHALAM @ THANKAPPA AND W/O.RADHAKRISHNAN, MANNEYANKAD, ALATHOOR POST, PALAKKAD DISTRICT, PIN-678541.

¶122

25 JAYAPRY AGED 40 YEARS D/O.LATE P.C.ARUNACHALAM @ THANKAPPA AND W/O.RATHEESH, THENACHAMPULAM HOUSE, KARIYANKODE POST, PALAKKAD DISTRICT, PIN- 678010.

¶123

¶124

RFA Nos.521/2016 & CO.No.140/2016

¶125

26 JAYASMITHA AGED 38 YEARS D/O.LATE P.C.ARUNACHALAM @ THANKAPPA AND W/O.MANIKANDAN, PALAKKAL HOUSE, POTTASSERI POST, PALAKKAD DISTRICT, PIN 678598.

¶126

27 JAYANISHA,, AGED 34YEARS D/O.LATE P.C.ARUNACHALAM @ THANKAPPA AND W/O.THANKARAJ, KEETTUMMARU HOUSE, TRIKKALUR POST, MANNARKKAD TALUK

¶127

LEGAL HEIRS OF THE DECEASED 1 RESPONDENT ARE IMPLEADED IN THE PARTY ARRAY AS ADDITIONAL RESPONDENTS 21 TO 27 VIDE ORDER DATE 11.1.19 IN IA 2/19.

¶128

BY ADV SRI.R.SREEHARI

¶129

THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR HEARING ON 29.09.2021, ALONG WITH RFA.521/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶130

RFA Nos.521/2016 & CO.No.140/2016

¶131

¶132

JUDGMENT

¶133

The 1^st defendant, as against the

¶134

preliminary decree for partition with respect to item No.8 in the decree schedule came up in appeal on the ground that, item No.8 consisting of 4.25 Acres, which was earlier partitioned between one Chami- father of plaintiffs & defendants, and his two brothers Kandan and Mayan under Ext.A2 Partition of the year 1953, wherein 2.25 Acres were allotted to the share of Kandan and Mayan, which was subsequently purchased by the 1^st defendant under Ext.B1 and B2 sale deeds. There is no dispute with respect to the execution of Ext.A2 partition deed of the year 1953 and allotment of respective shares which were subsequently purchased by the defendant under Ext.B1 and B2. But the said property, which

¶135

¶136

RFA Nos.521/2016 & CO.No.140/2016

¶137

comes to 2.25 acres, was not exempted or excluded from the decree for partition, against which the 1^st defendant came up.

¶138

There is no dispute with respect to

¶139

Ext.A2 partition of the year 1953 and purchase of shares of Kandan and Mayan under Exts.B1 and B2 by the 1^st defendant, which comes to 2.25 acres, out of the large extent of 4.25 acres. The same is liable to be excluded from the preliminary decree and there is a material omission on the part of the trial court in that behalf. Hence, the preliminary decree is liable to be modified to that extent.

¶140

The 8^th respondent, who claims to be a purchaser, advanced an argument that, an agreement was entered into between the parties on 12.02.1993, which has to be taken as a family arrangement. It is an unregistered

¶141

¶142

RFA Nos.521/2016 & CO.No.140/2016

¶143

document. It cannot be treated as a family arrangement simply because of the reason that the property was already subjected to a partition in the year 1953 between Chami - father of plaintiffs & defendants, and his two brothers Kandan and Mayan, wherein their shares were purchased under Exts.B1 and B2. Since these two properties are covered by two different acquisitions, Exts.B1 and B2, the same cannot be treated as part of the family property. It is fairly conceded by the learned counsel that he has no business with the 8^th schedule property, as the property purchased by him will0 not form any part of the 8^th schedule. As such, it has no much relevance.

¶144

The appeal is allowed accordingly,

¶145

modifying the preliminary decree by excluding the property covered by Exts.B1 and B2, which

¶146

RFA Nos.521/2016 & CO.No.140/2016

¶147

¶148

comes to 2.25 Acres. No costs.

¶149

The Cross Objection filed by the respondent Nos.1 to 5 will stand dismissed accordingly.

Sd/-

P.SOMARAJAN

JUDGE

SPV

Thatha v. P.C.Arunachalam Thankappa

Case brief

What is this about?

What did the court decide?

Thatha v. P.C.Arunachalam Thankappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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