Allowed

Devakikutty v. Suma Ramachandran

Kerala HC5 Oct 2021OP(C)/324/2017

Case brief

AI extract

What is this about?

The High Court allowed the petition to set aside the impugned order rejecting a prayer for reception of a certified copy of a partition agreement. The court held that acceptance and admissibility are different aspects and the trial court must accept the document subject to relevance and admissibility decided later.

What did the court decide?

The impugned order rejecting the prayer for reception of the certified copy of the partition agreement is set aside. The trial court is directed to accept Document No. 1 subject to relevance and admis

Devakikutty Vs Suma Ramachandran — Partition | Kerala HC (2021)

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OP(C).324/17 1

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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 V.G.ARUN

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TUESDAY, THE 5^TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943

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OP(C) NO. 324 OF 2017

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AGAINST THE ORDER/JUDGMENT IN OS 200/2012 OF SUB COURT, OTTAPPALAM, PALAKKAD

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PETITIONER/S:

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1 DEVAKIKUTTY AGED 64 YEARS AGED 64 YEARS, D/O.THE LATE RADHAKRISHNAN NAIR, DEVI NIVAS, VALLAPPUZHA, PATTAMBI TALUK, PALAKKAD DISTRICT.

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2 V.NARAYANA PRASAD 60 YEARS, S/O.THE LATE RADHAKRISHNAN NAIR, DEVI NIVAS, VALLAPPUZHA, PATTAMBI TALUK, PALAKKAD DISTRICT.

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BY ADVS. SRI.VINOD RAVINDRANATH SRI.ASHWIN SATHYANATH SRI.M.DEVESH SRI.K.C.KIRAN SMT.MEENA.A. SRI.VINAY MATHEW JOSEPH

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RESPONDENT/S:

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1 SUMA RAMACHANDRAN D/O.JANARDHANAN NAIR, DILEEP VIHAR, POST KAYILIYAD, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679122.

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2 RAMACHANDRAN DILEEP VIHAR, POST KAYILIYAD, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679122.

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3 SOBHANA GOVIND D/O.KANJANGAT THE LATE JANARDHANAN NAIR,

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OP(C).324/17

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KURUVATTOOR AMSOM, KAYILIYAD DESOM, POST KAYILIYAD, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679122.

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4 SUDHA UNNIKRISHNAN D/O.KANJANGAT THE LATE JANARDHANAN NAIR, KURUVATTOOR AMSOM, KAYILIYAD DESOM, POST KAYILIYAD, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679122.

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5 JAYAKKRISHNAN S/O.THE LATE RADHAKRISHNAN NAIR, DEVI NIVAS, VALLAPPUZHA, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN-679336.

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BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29.7.2021, THE COURT ON 05.10.2021 DELIVERED THE FOLLOWING:

OP(C).324/17

V.G.ARUN, J.

O.P(C).No. 324 of 2017

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Dated this the 5^th day of October, 2021 JUDGMENT

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The petitioners are supplementary plaintiffs 2 and 3 in O.S.No.200 of 2012 on the files of the Subordinate Judge’s Court, Ottapalam. The suit is filed for permanent prohibitory injunction restraining the defendants and their men from encroaching upon plaint schedule properties and in the alternative, to direct the defendants to hand over vacant possession of the plaintiffs schedule properties to the plaintiffs. In the plaint it is averred that the properties were in the possession and enjoyment of Radhakrishnan Nair, the predecessor-in-interest of the plaintiffs, by virtue of a partition agreement entered into between Radhakrishnan Nair and his brother Janardhanan Nair on 15.2.1958. The defendants are the wife and children of Janardhanan Nair. They had earlier filed a suit for partition as O.S.No.65 of 2006. The partition agreement produced by the defendants and marked as Exhibit B1 was impounded by the court and sent to the District Collector for initiating proceedings under

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OP(C).324/17

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Section 39 of the Kerala Stamp Act. By Ext P1 judgment, O.S. No. 65 of 2006 was dismissed with cost finding that the properties were not partible in view of the an oral partition, as disclosed by Exhibit B1.

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The petitioners along with the other legal heirs of Radhakrishinan Nair, filed O.S.No.200 of 2012 alleging that even after Exhibit P1 judgment, the legal heirs of Janardhanan Nair attempted to trespass into the portion set apart to the share of Radhakrishnan Nair. After the suit was listed for trial, the petitioners filed I.A.No.164 of 2017 praying for reception of three documents. The first document being the certified copy of the partition agreement dated 15.2.1958 marked as Ext. B1 in O.S.65 of 2006. The trial court accepted document numbers two and three and rejected the prayer for accepting the partition agreement for the reason that the document was impounded in O.S.No.65 of 2006 and the matter is pending before the District Collector. According to the trial court, as the procedure for impounding is not over, the document could not have been marked and is hence inadmissible in evidence. Aggrieved, this original petition is filed.

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Sri.T.Krishnan Unni, learned Senior Counsel for the petitioners, made a singular and forceful contention that acceptance of the document and its admissibility are different aspects and the court below had rejected the application for accepting the document, without taking note of this distinction.

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OP(C).324/17

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Moreover, the partition karar was accepted in evidence and marked as Exhibit B1 in O.S.No.65 of 2006 and copy of the document is being produced only for the collateral purpose of showing the plaint schedule.

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As rightly contended by the learned Senior Counsel acceptance of a document and its admissibility in evidence are different aspects. The Apex Court in K. Mallesh v. K. Narender, (2016) 1 SCC 670 has held that the admissibility, reliability and registrability of the documents shall be considered independently only at the time of hearing of the trial and not prior thereto.

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Here, the document being a certified copy obtained from court, should have been accepted, subject to its acceptability and relevance. Being so, the impugned order is liable to be set aside.

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In the result, the original petition is allowed. Exhibit P6 order is set aside. The trial court shall accept Document No.1 in I.A. No.164 of 2017, subject to its relevance and admissibility to be decided at the appropriate stage.

V.G.ARUN, JUDGE

vgs

OP(C).324/17

APPENDIX OF OP(C) 324/2017

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PETITIONER EXHIBITS

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EXHIBIT P1-	TRUE COPY OF THE JUDGMENT IN O.S.NO.65/2006, ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OTTAPALAM DATED 11/01/2010.
EXHIBIT P2-	TRUE COPY OF THE JUDGMENT IN O.S.NO.200/2012, ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OTTAPALAM DATED 09/06/2012.
EXHIBIT P3-	TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 1 AND 2 DATED MARCH, 2013.
EXHIBIT P4-	TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 3 AND 4 DATED 17/11/2014.
EXHIBIT P5-	TRUE COPY OF I.A.NO.164/2017 DATED 20/01/17.
EXHIBIT P6-	TRUE COPY OF THE ORDER OF THE COURT OF THE SUBORDINATE JUDGE OF OTTAPALAM IN I.A.NO.164/2017 IN O.S.NO.200/2012 ON ITS FILE DATED 21/07/2017.

Devakikutty v. Suma Ramachandran

Case brief

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Devakikutty v. Suma Ramachandran

Case brief

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