Dismissed

S.Charulatha v. K.Vinod Kumar

Kerala HC27 Sept 2021FAO/137/2017

Case brief

AI extract

What is this about?

The High Court dismissed a first appeal challenging the first appellate court's grant of leave to appeal. The Court ruled the appellant was not an aggrieved person as the decree did not bind or adversely affect his interests regarding succession.

What did the court decide?

The appeal was dismissed. The order made by the First Appellate Court allowing the appeal as an aggrieved person is set aside.

S.Charulatha Vs K.Vinod Kumar — Succession and Inheritance | Kerala HC (2021)

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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 P.SOMARAJAN

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MONDAY, THE 27^th DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943

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FAO NO. 137 OF 2017

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AGAINST THE ORDER DATED 10.07.2017 IN IA No.2005/2016 IN UNNUMBERED

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A.S. ON THE FILE OF THE DISTRICT COURT, THIRUVANANTHAPURAM O.S.No.679/15 OF PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM

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APPELLANT/1st COUNTER PETITIONER IN I.A.No.2005 OF 2016 IN UNNUMBERED

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A.S. ON THE FILE OF THE COURT OF DISTRICT JUDGE, THIRUVANANTHAPURAM/PLAINTIFF IN O.S.No.679 OF 2014 ON THE FILE OF THE

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PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM:

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S.CHARULATHA, AGED 70 YEARS, D/o LATE P.SAROJINI AMMA AND BASKARAN NAIR, RESIDING AT APRA-49, NIRALA, AMITA SANKAR ROAD, KANNAMOOLA, THIRUVANANTHAPURAM-695001.

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BY ADVS. SRI.R.LAKSHMI NARAYAN SRI.M.ASHOK KINI SMT.R.RANJANIE

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RESPONDENTS/PETITIONER AND 2nd COUNTER PETITIONER IN I.A.No.2005 OF

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2016 IN UN NUMBERED A.S. ON THE FILE OF THE COURT OF DISTRICT JUDGE,

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THIRUVANANTHAPURAM / NOT PARTY TO THE SUIT, AND DEFENDANT IN O.S.No.679 OF 2015 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT,

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THIRUVANANTHAPURAM:

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1 K.VINOD KUMAR, AGED 49 YEARS, S/o KARUNAKARAN K., KARUNAMBIKAI COLONY, VELACHERY, CHENNAI-42, NOW PERMANENTLY RESIDING AT "SREESAYLAM",T.C.30/243(3) KALLUMOODU GARDENS, ANAYARA P.O.,THIRUVANANTHAPURAM-11.

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2 J.SURESH KUMAR, AGED 68 YEARS, S/o N.K.JANARDHANAN NAIR, RESIDING AT M.P.11, 292E, 'KRISHNAKELI', KAVUVILA ROAD, THACHOTTUKAVU, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM-695571.

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R1 BY ADV SRI.D.KISHORE

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 27.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

FAO No.137 of 2017

JUDGMENT

The Leave granted by the First Appellate Court to

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prefer an appeal as an aggrieved person brought under challenge on the reason that he is not a party to the suit, and is not bound by the decree and hence the leave granted cannot be sustained.

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Who is an aggrieved person for the purpose of an appeal, what is the test available and whether it was

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properly applied by the First Appellate Court are the questions require consideration.

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The legal position was settled by this court in

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Thottappayil Suresan and others v. A.P. Gopalakrishnan and others [2019 (1) KHC 284] . The test is to ascertain not

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only whether he is bound by the decree, but also whether the decree would operate against him or adversely affect his interest. It is a matter wherein the plaintiff earlier approached the Tahsildar for obtaining a legal heirship certificate. Based on the objection raised by the appellant, it was cancelled. It was taken up in a writ

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FAO No.137 of 2017 3

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petition before this court and also in a writ appeal, wherein this court referred the parties to agitate their issue by instituting a suit. But in the suit instituted, the first respondent was excluded from the party array and obtained a succession certificate, which is under challenge in the appeal.

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The succession certificate was admittedly issued with respect to the assets of one deceased Damodaran. The appellant herein claims that he is one of the legal heirs of deceased Damodaran. Hence, he would be a person interested in the decree and will stand affected by the decree. Hence, there is no merit in the appeal. Appeal fails, dismissed, but without cost.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

FAO No.137 of 2017

APPENDIX

APPELLANT'S ANNEXURE:

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ANNEXURE A1 : THE PHOTOCOPY OF THE PLAINT IN O.S.No.679/15. ANNEXURE A2 : THE PHOTOCOPY OF AFFIDAVIT DATED 24.7.2015. ANNEXURE A3 : THE PHOTOCOPY OF THE DECREE DATED 31.7.2015 IN O.S.No.679/15.

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ANNEXURE A4 : THE PHOTOCOPY OF THE JUDGMENT DATED 31.7.2015 IN O.S.No.679/15.

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ANNEXURE A5 : THE PHOTOCOPY OF THE MEMORANDUM OF APPEAL. ANNEXURE A6 : THE PHOTOCOPY OF THE PETITION I.A.No.2005/16. ANNEXURE A7 : THE PHOTOCOPY OF THE JUDGMENT DATED 8.2.2012 IN W.P.C. No.1890/12.

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ANNEXURE A8 : THE PHOTOCOPY OF THE JUDGMENT DATED 4.3.2013 PASSED IN W.A.No.33/13.

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ANNEXURE A9 : THE PHOTOCOPY OF THE OBJECTION DATED 6.3.2017. ANNEXURE A10: THE PHOTOCOPY OF THE PROCEEDINGS DATED 5.10.1999. ANNEXURE A11: THE PHOTOCOPY OF JUDGMENT DATED 24.6.2004 IN O.S. No.7334/99.

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ANNEXURE A12: THE PHOTOCOPY OF THE DECREE DATED 24.6.2004 IN A.S.No.7334/99.

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ANNEXURE A13: THE PHOTOCOPY OF EXTRACT OF ADMISSION REGISTER OF GOVERNMENT V & H.S.S FOR GIRLS, MANAKADU, THIRUVANANTHAPURAM.

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ANNEXURE A14: THE PHOTOCOPY OF THE IDENTITY CARD OF P.SAROJINI AMMA.

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ANNEXURE A15: THE PHOTOCOPY OF THE EXTRACT OF ADMISSION

FAO No.137 of 2017

ANNEXURE A16 : THE PHOTOCOPY OF THE CERTIFICATE ISSUED TO MOTHER OF PETITIONER BY CHENNAI CITY CIVIL COURT. ANNEXURE A17 : THE PHOTOCOPY OF THE CERTIFICATE DATED 26.2.2001. ANNEXURE A18 : THE PHOTOCOPY OF THE RELEVANT PAGES OF THE GAZETTE NOTIFICATION DATED 23.1.2001. ANNEXURE A19 : THE PHOTOCOPY OF THE CERTIFICATE DATED 3.2.2001, ISSUED BY TAHSILDAR, THIRUVANANTHAPURAM. RESPONDENTS' ANNEXURE: NIL

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// TRUE COPY //

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P.A. TO JUDGE

S.Charulatha v. K.Vinod Kumar

Case brief

What is this about?

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S.Charulatha v. K.Vinod Kumar

Case brief

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