The High Court of Kerala dismissed a second appeal in a property partition suit. The court rejected claims for remand to consider additional documents regarding property extent, upholding lower courts' finding that 35.600 cents remained for partition and heirs were entitled to shares.
The appeal was dismissed with no interest on the decree, as the appeal lacked merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 23RD DAY OF AUGUST 2022 / 1ST BHADRA, 1944
RSA NO. 306 OF 2021
AGAINST THE ORDER/JUDGMENT IN OS 288/2013 OF MUNSIFF COURT, VAIKOM
AS 194/2017 OF ADDITIONAL DISTRICT COURT - IV, KOTTAYAM
APPELLANT/APPELLANT/1ST DEFENDANT:
MATHAI AGED 68 YEARS S/O MATHAI CHANDY, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK. BY ADV S.MOHAMMED AL RAFI
RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 8:
D/O MATHAI CHANDY, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686 613. W/O RAO, NOW RESIDING AT ROOM NO.13/IX, MOULANA FLAT, OOTTY ROAD, PERINTHALMANNA, MALAPPURAM DISTRICT-679 322.
2 JAISAMMA MATHEW, D/O MATHAI CHANDY, PALLIYANTHARAYIL HOUSE, KURAVILANGADU P.O, AND VILLAGE, MEENANCHIL TALUK, KOTTAYAM-686 633 (OLD ADDRESS -CHIRACKAL HOUSE, AYAMKUDI P.O,AYAMKUDI KARA, MUTTUCHIRA VILLAGE,VAIKOM TALUK, KOTTAYAM-686 613.) 3 MARY W/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686 613. 4 MATHAI S/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O,AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686 613. 5 SHYJU, S/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O,AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613.
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6 SHIJO, S/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613. 7 LIJO, S/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613. 8 LEENA, D/O CHANDY MATHAI, CHIRACKAL HOUSE, AYAMKUDI P.O, AYAMKUDI KARA, MUTTUCHIRA VILLAGE, VAIKOM TALUK, KOTTAYAM-686613. BY ADV JOBI.A.THAMPI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
08.08.2022, THE COURT ON 23.08.2022 DELIVERED THE FOLLOWING:
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M.R.ANITHA, J
****************** R.S.A.No.306 of 2021
Dated this the 23rd day of August, 2022
JUDGMENT
This Regular Second Appeal has been filed against the judgment and decree in A.S.No.94/2017 on the file of Additional District Judge-IV, Kottayam which arouse out of the judgment
and decree in O.S.No.288/2013 on the file of the Munsiff's Court, Vaikom.
O.S.No.288/2013 and the parties would hereafter be referred as
per their status before the trial court. The suit was one for recovery of possession, partition and permanent prohibitory injunction. Plaintiff and defendants 1 and 2 are the children of late Mathai Chandi and defendants 3 to 8 are the wife and
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children of the deceased son of Mathai Chandi. The parties are governed by he provisions of the Indian Succession Act. Plaint schedule property was obtained by late Mathai Chandi as per settlement deed No.1267/1954, sale deed No.3369/1986 and 2177/1963. Parents of the plaintiff and defendants 1 and 2 are no more. The deceased Mathai Chandi originally owned 131.5 cents of property and except the plaint schedule property, he transferred all the properties during his lifetime. Father agreed to grant 24 cents of property in favour of the plaintiff and it was informed to all children by the father. But, father died without executing any document as agreed in favour of the plaintiff. After the death of parents and brother, there was a settlement by which it was decided to grant 24 cents of property to the plaintiff as part of her share and the remaining property to be partitioned between the defendants 1 to 8 but the first defendant is not amenable to grant 24 cents in favour of the plaintiff. On 03.11.2013, first defendant also attempted to cut and remove the trees in the plaint schedule property. Hence the suit has been
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filed.
from the side of plaintiff. DW1 examined and Exts.B1 to B4 were marked from the side of defendants. Ext.C1 to C2(a) were also marked.
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Commissioner is available for partition and plaintiff being one of the legal heirs of late Mathai Chandy is entitled for ¼ share out of the plaint schedule property. Against which A.S.No.194/2017 has been filed.
the facts and circumstances confirmed the judgment and decree passed by the trial court and dismissed the appeal. Aggrieved by the same, appellant/1st defendant approaches this court in second appeal.
part and parcel of 1 Acre 31.5 cents of property owned by father Chandy Mathew, out of which 48 cents were given to the deceased brother Baby Alexander as per Ext.A4 and 24 cents to the appellant/1st defendant as per Ext.B1 and 21 cents to the mother who assigned the same later to the first defendant. So plaint schedule property was originally described as 44.5 cents of
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property and subsequently it was amended as 35.600 cents as per the Commissioner's report and plan.
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24 cents was negatived and there was no further challenge of that matter by the plaintiff. To resolve the dispute with respect to the extent of land remained with the father after settling the properties, a Commission was taken at the instance of plaintiff and Commissioner's report and plan has been marked as Exts.C2 and C2(a). Though the plaintiff originally described total extent of property held by the father as one acre 17 cents, on measurement the total extent of property was found to be 127.940 cents. So also, the plaintiff originally claimed the total property left by the father as 44½ cents. But on measurement of property by the Commissioner with the help of Taluk Surveyor the extent of property left was also found to be 35.600 cents and subsequent to the finding of the Commissioner's report and plan the extent of plaint schedule property was accordingly amended as 35.600 cents. It has been concurrently found by the learned Munsiff as well as the first appellate court that the plaint schedule property of 35.600 cents is partible and the plaintiff is entitled for ¼ share.
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stage. In this context, it is relevant to quote Elizabeth v. Saramma : 1984 KLT 606 : 1984 KHC 286 wherein a learned Single Judge of this Court observed that the pleadings that lead to the framing of issues and a trial in every civil case has inevitably to be confined to the issues framed in the suit. The whole object of framing issues would be defeated if parties are allowed to travel beyond the issues and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. In that decision, Lakshmi Narain v. State : AIR 1977 Patna 73 has been quoted wherein a Division Bench of Patna High Court had occasion to consider the objects and purpose of pleadings of Order 6 Rule 2 and Order 8 Rule 2, 3 and 4 of the Code of Civil Procedure and it has been observed by the Division Bench that the “sole object of the pleading is, as was pointed out by the Privy Council in (1895) 22 Ind App 4 (PC) that each side may be fully alive to the question that are about to be argued in order that they may have an opportunity to bringing forward such evidence as may be appropriate. Siddik Mohammed Shah
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v. Mt.Saran : AIR 1930 PC 57 also has been quoted wherein
it has been observed that wherein a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward.
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I.A.No.1805/2018 filed before the District Court, Kottayam on 02.12.2019 by which the extent of plaint schedule has been corrected as 35.600. But, it is discernible from the judgment passed by the trial court itself that a contention was advanced from the side of the first defendant that there is no specific pleading with respect to the extent of property and the description of the property is not sufficient to identify the same and the learned Munsiff noted that though the plaintiff carried out the amendment with respect to the extent of plaint schedule property in the body of the plaint, no amendment was carried out in the plaint schedule. But, rightly the learned Munsiff concluded that it has been proved that the plaint schedule property is having an extent of 35.600 cents as per the Commissioner's report and plan but the fact that amendment was not carried out in the plaint schedule is not a reason to dismiss the suit. So, at the appellate stage, plaintiff filed I.A.No.1805/2018 and the first appellate court allowed the application to carry out the amendment in the plaint schedule as 35.600 cents instead of
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44½ cents. On going through the plaint, it is seen that in the body of the plaint in paragraphs 3, 4 and 6, the plaintiff has amended the extent of plaint schedule property as 35.600 instead of 44½ cents as per the order in I.A.No.1512/2016 dated 05.11.2016. So, it would go to show that though amendment was effected in the body of the plaint with respect to the extent of plaint schedule property as per the Commissioner's report and plan plaintiff omitted to make suitable amendment in the plaint schedule. So, that has been permitted to be amended at the appellate stage. Since the extent of plaint schedule property has been amended in the body of the plaint during the trial stage itself, the amendment carried out in the plaint schedule at the appellate stage cannot be said to have caused any prejudice to the first defendant. So, at any rate, the request of the learned counsel for remand of the case for permitting him to produce the additional document does not require any consideration at all.
it has come out that late Mathai Chandi, the father of the first
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defendant and the plaintiff left out 35.600 cents of property scheduled in the plaint without alienation. The dispute of the first defendant originally was that only 9 cents and virivu of property is available for partition. From Exts.A1 to A3 documents the extent of property in total is found to be 1.17 acres out of which 48 cents was gifted as per Ext.A4 to Baby @ Alexander, the father of defendants 3 to 5. He also transferred 24 cents of property to first defendant as per Ext.B1 settlement deed and as per Ext.B2 the first defendant transferred this property to his wife by executing the settlement deed. Late Mathai also transferred 21 cents of property to his wife as per Ext.B3 gift deed and she in turn transferred the said property as per Ext.B4 settlement deed to the first defendant. The total extent of property as per Exts.A1 to A3 was only 117 cents. But Commissioner could identify 127.940 cents and the plaint schedule property is also identified as 35.600 cents instead of 44½ cents shown as the plaint schedule property originally. The Advocate Commissioner and Surveyor had examined PW5 and PW4 and it has been proved
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that the property available for partition is 35.600 cents. The first defendant who alone was contesting was mainly disputing the extent as 9 cents of virivu and it has been concurrently found by the two fact finding bodies that the property left out is 35.600 cents. Plaintiff being one of the co-sharers is entitled for ¼ share of the plaint schedule property. So, I do not find any illegality or irregularity in the said concurrent finding of fact entered into by the courts below. Hence the appeal is found to be devoid of any merit. In the result, the appeal dismissed.
Sd/-
M.R.ANITHA, JUDGE
jsr
3 issues framed by the court
Whether dismissal of additional document application warrants remand in fact issue concerning property extent.
Whether amendment of plaint schedule at appellate stage without prejudice requires remand for hearing on additional document.
Whether the concurrent finding of lower courts regarding remaining property extent and parties’ shares is legally sustainable.
Colour shows how this judgement treated each authority
Elizabeth v. SarammaReferred¶63
Elizabeth v. Saramma : 1984 KLT 606 : 1984 KHC 286
Lakshmi Narain v. StateReferred¶63
Lakshmi Narain v. State : AIR 1977 Patna 73 · Who else cites this
Siddik Mohammed Shah v. Mt. SaranReferred¶67
Siddik Mohammed Shah v. Mt.Saran : AIR 1930 PC 57 · Who else cites this
1 provisions across 1 enactments
Mathai
Minimol Mathew
Jaisamma Mathew
Mary
Mathai
Shyju
M.R. Anitha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
