Disposed

Malayathodi Sankaran @ Sankarankutty, (Died)(Lrs Impleaded) v. Malayathodi Gopalakrishnan

Kerala HC2 Nov 2021RSA/990/2006

Case brief

AI extract

What is this about?

The High Court disposed of two appeals regarding partition and injunction suits. The court held that civil death of respondents absent for 30 years could not be presumed solely from a compromise petition. Consequently, the compromise was not binding on them but was recorded for other parties settled out of court, allowing a final decree without a preliminary one.

What did the court decide?

RSAs disposed of by recording a compromise which is not binding on specific respondents; final decree passed without preliminary decree.

Malayathodi Sankaran @ Sankarankutty, (Died)(Lrs Impleaded) Vs… — Partition | 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 N.ANIL KUMAR

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TUESDAY, THE 2^ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA,

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1943

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RSA NO. 990 OF 2006

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AS 2/2002 OF DISTRICT COURT, KOZHIKODE

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OS 186/1988 OF ADDITIONAL MUNSIFF COURT-II, KOZHIKODE APPELLANT/APPELLANT IN THE LOWER APPELLATE

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COURT/PLAINTIFF:

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1 MALAYATHODI SANKARAN @ SANKARANKUTTY, S/O.CHANDAPPAN, VALIYATHODIYIL, PANTHEERANKAVU, KODAL AMSOM AND DESOM, KOZHIKODE TALUK,

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KOZHIKODE DISTRICT.

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(DIED)(LRS IMPLEADED)

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ADDL.A2 SUSHEELA V.T.,

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MANNARMANNIL HOUSE, VELLIPARAMBU P.O., KOTTARAPPADAM, KOZHIKODE-673 008.

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ADDL.A3 BHARATHI V.,

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C/O.A.SANKUNNI,AMBALI HOUSE,VELLOOR P.O.,POOKOTTOOR,MALAPPURAM-676 517.

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ADDL.A4 VANDANA,

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VALIYATHODIYIL HOUSE,PANTHEERANKAVU P.O.,KOZHIKODE-673 019.

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ADDL.A5 JITHESH,

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S/O.VILASINI,VALIYATHODIYIL HOUSE, PANTHEERANKAVU P.O.,KOZHIKODE-673 019.

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(DIED)(LRS RECORDED)

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..2..

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RSA Nos. 990 & 991 of 2006

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ADDL.A6 AMRITHA, D/O.SANKUNNI,AMBALI HOUSE,MANNARMANNIL HOUSE,VELLIPARAMBU P.O.,KOTTARAPPADAM, KOZHIKODE-673 008.

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ADDL.A7 SHIBINA, D/O.PURUSHOTHAMAN,PULPARAMBIL HOUSE,PANTHEERANKAVU P.O.,KOZHIKODE-673 019.

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ADDL.A8 VASU, MANNARMANNIL HOUSE, VELLIPARAMBA, KOTTARAPPADAM, KOZHIKODE-673 008.

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BY ADVS. M.P.SREEKRISHNAN SHAHNA KARTHIKEYAN A.MUHAMMED MUSTHAFA

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 MALAYATHODI GOPALAKRISHNAN S/O.M.SANKARANKUTTY, KODAL AMSOM AND DESOM, KOZHIKODE TALUK.

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2 MALAYATHODI BAHULEYAN S/O.SANKARANKUTTY, KODAL AMSOM AND DESOM, KOZHIKODE TALUK.

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3 MALAYATHODI SAMIDASAN S/O.SANKARANKUTTY, KODAL AMSOM AND DESOM, VALIYATHODIYIL HOUSE, PANTHEERANKAVU, KOZHIKODE.

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4 SISTER SREEJA, D/O.SANKARAN ALIAS SANKARANKUTTY,DO. DO. DO.

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ADDL.R5 VILASINI V., (DIED) VALIYATHODIYIL HOUSE, PANTHEERANKAVU P.O.,KOZHIKODE-673 019. (LRS RECORDED)

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RSA Nos. 990 & 991 of 2006

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..3..

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(LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO 8 AND ADDL.RESPONDENT 5 AS PER THE ORDER DATED 13.12.2017 IN IA.457/2016.)

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ADDL.RESPONDENT NO.5 DIED. ADDL.APPELLANT NO.5 IS RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED ADDL.RESPONDENT NO.5 AS PER THE ORDER DATED 13.12.2017 ON VIDE MEMO OF 7411/2017 DATED 21.11.2017.)

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(RESPONDENT NO.2 TO 4 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED APPELLANT 5 AS PER ORDER DATED 10.04.2019 IN MEMO DATED 16.10.2017.)

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BY ADVS. I.P.SREEKANTH SANTHAN V.NAIR

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2021, ALONG WITH RSA.991/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA Nos. 990 & 991 of 2006

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..4..

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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 N.ANIL KUMAR

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TUESDAY, THE 2^ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA,

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1943

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RSA NO. 991 OF 2006

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AS 1/2002 OF DISTRICT COURT, KOZHIKODE

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OS 1098/1987 OF ADDITIONAL MUNSIFF COURT-II, KOZHIKODE APPELLANT/APPELLANT IN THE LOWER APPELLATE

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COURT/PLAINTIFF:

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1 MALAYATHODI SANKARAN @ SANKARANKUTTY S/O.CHANDAPPAN, VALIYATHODIYIL,, PANTHEERANKAVU,

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KODAL AMSOM AND DESOM, KOZHIKODE TALUK,

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KOZHIKODE DISTRICT. (DIED) (LRS IMPLEADED)

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ADDL.A2 SUSHEELA V.T.,

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MANNARMANNIL HOUSE,VELIPARAMBU

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P.O.,KOTTARAPPADAM,KOZHIKODE-673 008.

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ADDL.A3 BHARATHI V.,

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C/O.A.SANKUNNI,AMBALI HOUSE,VELLOOR P.O.,POOKOTTOOR,MALAPPURAM.

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ADDL.A4 SREEJA,

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MANNARMANNIL HOUSE,VELIPARAMBU

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P.O.,KOTTARAPPADAM,KOZHIKODE-673 008.

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ADDL.A5 VANDANA,

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VALIYATHODIYIL HOUSE,PANTHEERANKAVU P.O.,KOZHIKODE.

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ADDL.A6 JITHESH,

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AMBALI HOUSE,VELLOOR P.O.,POOKOTTOOR,MALAPPURAM.

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..5..

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RSA Nos. 990 & 991 of 2006

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ADDL.A7 AMRITHA,

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MANNARMANNIL HOUSE,VELIPARAMBU

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P.O.,KOTTARAPPADAM,KOZHIKODE-673 008.

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ADDL.A8 SHIBINA,

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D/O.PURUSHOTHAMAN,PULPARAMBIL

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HOUSE,PANTHEERANKAVU P.O.,KOZHIKODE-673 019.

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ADDL.A9 VASU,

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MANNARMANNIL HOUSE,VELIPARAMBU P.O.,KOTTARAPPADAM,KOZHIKODE-673 008.

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(ADDITIONAL APPELLANTS 2 TO 9 AND ADDITIONAL FOURTH RESPONDENT ARE IMPLEADED AS PER ORDER DATED 09.03.2018 IN IA.461/2016.)

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BY ADVS. M.P.SREEKRISHNAN

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SHAHNA KARTHIKEYAN

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 MALAYATHODI GOPALAKRISHNAN S/O.M.SANKARANKUTTY, KODAL AMSOM AND DESOM, KOZHIKODE TALUK.

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2 MALAYATHODI BAHULEYAN S/O.SANKARANKUTTY, KODAL AMSOM AND DESOM, KOZHIKODE TALUK.

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3 MALAYATHODI SAMIDASAN S/O.SANKARANKUTTY, KODAL AMSOM AND DESOM, VALIYATHODIYIL HOUSE, PANTHEERANKAVU, KOZHIKODE.

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RSA Nos. 990 & 991 of 2006

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..6..

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ADDL.R4 VILASINI V., (DIED) VALIYATHODIYIL HOUSE, PANTHEERANKAVU, KOZHIKODE.

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(ADDITIONAL SIXTH APPELLANT IS RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED ADDITIONAL FOURTH RESPONDENT AS PER ORDER DATED 27.11.2017 IN MEMO DATED 21.11.2017, C.F.7437/2017.)

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BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2021, ALONG WITH RSA.990/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA Nos. 990 & 991 of 2006

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..7..

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RSA Nos. 990 & 991 of 2006

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JUDGMENT

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RSA No. 990 of 2006 is against the judgment and decree dated 21.08.2006 in AS No. 2 of

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2002 on the file of the District Court, Kozhikode (hereinafter referred to as, “the first appellate court”) on appeal from the judgment and decree dated 23.08.2001 in OS No. 186 of 1988 on the file of the Additional Munsiff Court-II, Kozhikode (hereinafter referred to as, “the trial court”).

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RSA No.991 of 2006 is against the judgment and decree dated 21.08.2006 in AS No. 1 of 2002 on the file of the first appellate court on appeal from the judgment and decree dated 23.08.2001 in OS No. 1098 of 1987 on the file of the trial court.

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RSA Nos. 990 & 991 of 2006

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..8..

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The above RSAs arise out of common judgment

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and decree on the file of the very same court.

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OS No. 186 of 1988 is a suit for partition and OS No. 1098 of 1987 is a suit for injunction. The suit for partition was decreed and the suit for injunction was dismissed. The common judgment and decree of the trial court was assailed in AS Nos.1 and 2 of 2002 respectively before the first appellate court. The first appellate court dismissed the appeals, confirming the common judgment and decree of the trial court. Hence, these RSAs.

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During the pendency of the appeals, the sole appellant died. In RSA No. 990 of 2006, additional appellants 2 to 8 and the additional respondent No.5 were impleaded as

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the legal heirs of the deceased sole appellant. In RSA No. 991 of 2006, additional

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appellants 2 to 9 and the additional respondent No.4 were impleaded as the legal

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RSA Nos. 990 & 991 of 2006

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..9..

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heirs of the deceased sole appellant. Subsequently, one of the legal heirs of the deceased sole appellant, Smt.Vilasini V., who is the additional 5^th respondent in RSA No. 990 of 2006 and the additional 4^th respondent in RSA No. 991 of 2006, expired. Sri.Jithesh, who is the additional 5^th appellant in RSA No. 990 of 2006 and the additional 6^th appellant in RSA No. 991 of 2006, recorded as the legal heir of Smt.Vilasini, died unmarried and issueless.

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Now, the parties to the appeals arrived at a consensus and decided to settle the dispute by way of compromise. The compromise petition is filed as IA No. 1 of 2021 in RSA No. 990 of 2006 before this Court.

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The contents of paragraph 4 of the compromise petition would inter alia show that the whereabouts of Sri.Malayathodi Bahuleyan and Sri.Malayathodi Samidasan, who are respondents

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2 and 3 in the appeals, are not known to the

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RSA Nos. 990 & 991 of 2006

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members of the family for the last more than 30 years. It is further stated that they were

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not heard or seen by any of the relatives or people of the locality for the last more than 30 years.

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As per Section 107 of the Evidence Act, the burden of proving death of a person known to have been alive within thirty years is on the

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person, who affirms it. Section 108 of the Evidence Act provides that when the question is whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proof is shifted to the person, who affirms it. The recital contained in paragraph 4 of the compromise petition is insufficient to invoke or presume the death of respondents 2

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and 3 under Sections 107 and 108 of the

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Evidence Act. Civil death cannot be presumed

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RSA Nos. 990 & 991 of 2006

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lightly in view of a recital contained in the compromise between the parties. It is a rule of evidence. The question should arise in the suit and the matter be decided in accordance with law. In view of the circumstances, it is not possible to hold that respondents 2 and 3 are presumed to be dead. However, they are not available to put signature in the compromise. In the compromise, it is stated that by way of abundant caution, shares have been allocated to them separately and set apart in the sketch appended to the compromise.

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Since civil death cannot be presumed, it is

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just and proper to hold that whatever compromise arrived at between the parties is

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not binding upon respondents 2 and 3 in the appeals.

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The suit is of the year 1988. The parties have been agitating the case for the last three decades. Considering the fact that all other

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RSA Nos. 990 & 991 of 2006

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..12..

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parties except respondents 2 and 3 have settled the matter out of court, it is just and proper to record the compromise arrived at between the parties. However, it is clarified that the compromise so recorded is not binding

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on respondents 2 and 3 or their legal heirs, if any. Since the matter is settled between the parties, it is not necessary to pass a preliminary decree in this case. All the disputes are settled between the parties by way of separate plans appended to the compromise. Hence, this Court is justified in passing a final decree to avoid multiplicity of proceedings.

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In the result, these RSAs are disposed of in terms of compromise. The terms of compromise and the plans appended thereto will form part of the decree. However, it is clarified that the compromise so recorded is not binding on respondents 2 and 3 or their legal heirs, if

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RSA Nos. 990 & 991 of 2006

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any. There would be no order as to costs. Pending applications, if any, stand closed.

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Registry is directed to engross the final decree in accordance with rules.

Sd/-

N.ANIL KUMAR

JUDGE

Bka/02.11.2021

Malayathodi Sankaran @ Sankarankutty, (Died)(Lrs Impleaded) v. Malayathodi Gopalakrishnan

Case brief

What is this about?

What did the court decide?

Malayathodi Sankaran @ Sankarankutty, (Died)(Lrs Impleaded) v. Malayathodi Gopalakrishnan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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