Dismissed

Madhavan, v. Kamalam

Kerala HC10 Mar 2023RFA/144/2019

Case brief

AI extract

What is this about?

On a first appeal against the preliminary decree and judgment affecting partial partition of property, the High Court of Kerala held that while omission of some property may be raised as a preliminary issue at the trial stage, the decree remains valid. The decedent's will proved under Section 68 of the Evidence Act was accepted as a basis for partition, but the appellate court rejected the claim t

What did the court decide?

Appeal dismissed. Decree confirmed without prejudice to right to file a separate suit for property omitted from the suit.

Madhavan, Vs Kamalam — Partition | Kerala HC (2023)

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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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FRIDAY, THE 10^th DAY OF MARCH 2023 / 19TH PHALGUNA, 1944

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RFA NO. 144 OF 2019 (E)

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AGAINST THE JUDGMENT & DECREE DATED 25.09.2017 IN OS No.346/2012

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OF ADDITIONAL SUB COURT, PALAKKAD

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APPELLANT/1st DEFENDANT:

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MADHAVAN, AGED 67 YEARS, S/o LATE VELAYUDHAN, PANIKKER KALAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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BY ADV U.BALAGANGADHARAN

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RESPONDENTS/PLAINTIFFS, DEFENDANTS 2 TO 11 & ADDL.DEFENDANTS 12 TO

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14:

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1 KAMALAM, AGED 74 YEARS, D/o LATE VELAYUDHAN, AYYANMAR KALAYIL, ERUTHENPATHY AMSOM, DESOM, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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2 JANAKI, AGED 70 YEARS, D/o LATE VELAYUDHAN, PUNCHAKODE, ELAPPULLY AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT-678 622

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3 KANANKAM, AGED 58 YEARS, D/o LATE VELAYUDHAN, ATTAPPALLAM, PAMBAMPALLAM, PUDUSSERY AMSOM DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT-678 007

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4 RUGMINI, AGED 71 YEARS, W/o LATE VELUMANI, PANIKKER KALAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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5 KANNAPPAN, AGED 51 YEARS, S/o LATE VELUMANI, PANIKKER KALAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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6 RADHAKRISHNAN, AGED 49 YERS, S/o LATE VELUMANI, PANIKKER KALAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT – 678 101

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7 VELAYUDHAN, AGED 47 YEARS, S/o LATE VELUMANI,

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RFA No.144 of 2019

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PANIKKER KALAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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8 SATHEESH, AGED 38 YEARS, S/o LATE VELUMANI, PANIKKER KALAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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9 SUDHEESH, AGED 36 YEARS, S/o LATE VELUMANI, PANIKKER KALAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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10 CHEMBAKAM, AGED 51 YEARS, W/o LATE CHENTHAMARA, PANIKKER KALAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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11 MEGHA, AGED 17 YEARS, D/o LATE CHENTHAMARA, PANIKKER KALAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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12 MITHUN, AGED 15 YEARS, S/o LATE CHENTHAMARA, PANIKKER KALAM, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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(RESPONDENTS 11 AND 12 ARE MINORS REPRESENTED BY THEIR GUARDIAN RESPONDENT NO. 10 CHEMBAKAM).

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13 SANTHA, AGED 50 YEARS, W/o LATE SUDEVAN, PANIKKER KALAM, ATHIKODE, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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14 PRANAV, AGED 25 YEARS, S/o LATE SUDEVAN, PANIKKER KALAM, ATHIKODE, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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15 SHARSHA, AGED 23 YEARS, D/o LATE SUDEVAN, PANIKKER KALAM, ATHIKODE, NALLEPPILLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101 R1 TO R3 BY ADV SRI.RAJESH SIVARAMANKUTTY

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA No.144 of 2019

JUDGMENT

The first defendant came up aggrieved by the

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preliminary decree and judgment of the trial court granting partition of the property left out by their father. Admittedly, he was having three daughters and

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three sons apart from his widow. The daughters came up with the suit challenging the earlier partition entered into under Ext.A1 by the mother along with her two sons and for getting partition of the property left out by the father. Inter alia, the defendants 1 and 2 claimed right over the property left out by their mother under a Will which was proved in accordance with the mandate under Section 68 of the Evidence Act. The grievance of the present appellant/the first defendant is that the father

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had obtained some other property from his deceased

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brother which was not incorporated in the present suit

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and as such the present decree is bad for partial partition. It is true that a suit for partial partition is bad in law and when any such contention was raised,

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RFA No.144 of 2019 4

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that has to be addressed as a preliminary issue before

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proceeding further with the suit. But, the very same principle cannot be applied when a decree for partition was granted by omitting some of the property which is available for partition. Due to non incorporation of some of the property to be partitioned, the suit alone will stand bad in law and not the decree or the judgment drawn in the suit. Necessarily, the question of non incorporation of any of the property available for partition should be addressed at the trial stage and it cannot be taken up at the first appellate stage, as it would stand outside the purview of jurisdiction that can

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be exercised by the appellate court. But, at the same time, it is within the jurisdiction of first appellate court to go into the question of availability of property included in the suit for partition. On the other hand, the decree would stand binding on both the parties as they will get another cause of action for the property, which was omitted to be partitioned. Hence, the present decree granted by the trial court can only be confirmed. I do so. The appeal fails and is dismissed without

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RFA No.144 of 2019 5 prejudice to the right of parties to take up the right over any of the properties left out as that of the deceased father by way of a separate suit.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Madhavan, v. Kamalam

Case brief

What is this about?

What did the court decide?

Madhavan, v. Kamalam

Case brief

What is this about?

What did the court decide?

What the court decided

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