Partly allowed

Leela v. Subhadra

Kerala HC11 Jul 2024CRP/43/2014

Case brief

AI extract

What is this about?

The High Court allowed the revision petition to set aside the dismissal of a partition suit regarding specific properties. The court partially set aside the ex parte decree in the stock suit for B to E schedule properties, remitting the matter for trial, while confirming the dismissal regarding A schedule property. Additionally, an execution order was remitted for fresh appointment of a commission

What did the court decide?

Dismissal of the suit seeking partition of B to E schedule properties was set aside, and the suit was restored for trial. The execution order was remitted for fresh appointment of a commissioner after

Leela Vs Subhadra — Partition | Kerala HC (2024)

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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 A. BADHARUDEEN
THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946
CRP NO. 20 OF 2014

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AGAINST THE JUDGMENT DATED 30.08.2013 IN CMA NO.7 OF 2012 OF I
ADDITIONAL DISTRICT COURT, KOLLAM ARISING OUT OF THE ORDER/JUDGMENT
DATED 21.10.2011 IN OS NO.139 OF 2006 OF APRINCIPAL SUB COURT, KOLLAM
REVISION PETITIONER/APPELLANT/PETITIONER:

¶5

LEELA
W/O.RAJAN, RADHA MANDIRAM,
PATTATHANAM, VADAKKEVILA VILLAGE,
KOLLAM TALUK, KOLLAM
BY ADVS.
T.KRISHNANUNNI (SR.)
MEENA.A.
VINOD RAVINDRANATH
M.R.MINI
ASHWIN SATHYANATH
K.C.KIRAN
M.DEVESH
ANISH ANTONY ANATHAZHATH
THAREEQ ANVER K.

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RESPONDENT/RESPONDENT/RESPONDENT:

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RADHAMMA

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W/O.SREENIVASAN,
RESIDING AT RESHMI, PATTATHANAM,
VADAKKEVILA VILLAGE, KOLLAM TALUK,
KOLLAM-691001

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BY ADV SRI.M.K.CHANDRA MOHANDAS

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.07.2024, ALONG
WITH CRP.24/2014, 43/2014 AND OPC 1776/2014, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:

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CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014

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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 A. BADHARUDEEN

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THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946

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CRP NO. 24 OF 2014

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AGAINST THE JUDGMENT DATED 30.08.2013 IN CMA NO.8 OF 2012
OF I ADDITIONAL DISTRICT COURT, KOLLAM ARISING OUT OF THE
ORDER/JUDGMENT DATED IN OS NO.139 OF 2006 OF PRINCIPAL SUB

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COURT, KOLLAM

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REVISION PETITIONER/APPELLANT/PETITIONER:

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LEELA
W/O.RAJAN, RADHA MANDIRAM,
PATTATHANAM, VADAKKEVILA VILLAGE,
KOLLAM TALUK, KOLLAM.

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BY ADVS.
T.KRISHNANUNNI (SR.)
MEENA.A.
VINOD RAVINDRANATH
M.R.MINI
ASHWIN SATHYANATH
K.C.KIRAN
M.DEVESH
THAREEQ ANVER K.

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RESPONDENT/RESPONDENT/RESPONDENT:

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RADHAMMA
W/O.SREENIVASAN,
RESIDING AT RESHMI, PATTATHANAM,
VADAKKEVILA VILLAGE, KOLLAM TALUK,
KOLLAM - 691 001.

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BY ADV SRI.M.K.CHANDRA MOHANDAS

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 11.07.2024, ALONG WITH CRP.20/2014 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014

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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 A. BADHARUDEEN

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THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946

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CRP NO. 43 OF 2014

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AGAINST THE JUDGMENT DATED 30.08.2013 IN CMA NO.9 OF 2012 OF I ADDITIONAL DISTRICT COURT, KOLLAM

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REVISION PETITIONER/APPELLANT/PETITIONER:

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LEELA
W/O.RAJAN, RADHA MANDIRAM, PATTATHANAM,
VADAKKEVILA VILLAGE, KOLLAM TALUK, KOLLAM.
BY ADVS.
VINOD RAVINDRANATH
MEENA.A., M.R.MINI
ASHWIN SATHYANATH
K.C.KIRAN, M.DEVESH
ANISH ANTONY, THAREEQ ANVER K.

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RESPONDENTS/RESPONDENTS/RESPONDENTS:

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1 SUBHADRA, W/O.SREENIVASAN,

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GEETHAMANDIRAM, KOIVILA P.O., KOLLAM-691001.

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2 RADHAMMA, W/O.SREENIVASAN, RESHMI, PATTATHANAM, VADAKKEVILA VILLAGE KOLLAM TALUK, KOLLAM 691 001

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3 SARASAMMA, W/O.REGHUDEVAN ROMESH VILLA, KUNLANGARA BHAGOM CHAVARA, KOLLAM, 691 001

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4 VALSALA, W/O.SOMARAJAN SREEPRIYA, THATTAMALA, KOLLAM 691 001

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5 LEKSHMI, (DIED) W/O.LATE RAGHAVAN LEKSHMI NIVAS, CHAVARA, KOLLAM 691 001 DEATH OF THE 5TH RESPONDENT IS RECORDED AND R1 TO R4 ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LRs OF THE DECEASED R5, AS PER ORDER DATED

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09.10.2014 ON MEMO BEARING CF NO.3637/14 IN CRP 43/14

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BY ADVS.

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SRI.M.K.CHANDRA MOHANDAS, SMT.K.K.RAZIA

¶47

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 11.07.2024, ALONG WITH CRP.20/2014 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶48

CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014

¶49

¶50

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946

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OP(C) NO. 1776 OF 2014

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AGAINST THE ORDER/JUDGMENT DATED IN OS NO.139 OF 2006 OF
PRINCIPAL SUB COURT, KOLLAM

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PETITIONER:

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LEELA
AGED 65 YEARS
W/O. RAJAN,RADHA MANDIRAM,
PATTATHANAM, VADAKKEVILA VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT, PIN-691010.
BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN

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RESPONDENT/S:

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RADHAMMA
W/O. SREENIVASAN,
'RESMI', PATTATHANAM, VADAKKEVILA VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT, PIN-691010.
BY ADVS.
SRI.M.K.CHANDRA MOHANDAS
SRI.M.L.JISHNU
SRI.PRATHEEK VISWANATHAN
SMT.K.K.RAZIA
SMT.SOBBY THOMAS
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
11.07.2024, ALONG WITH CRP.20/2014 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014

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COMMON ORDER/JUDGMENT

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Dated this the 11^th day of July, 2024

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CRP Nos.20/2014, 24/2014 and 43/2014 have been

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filed under Section 115 of the Code of Civil Procedure.

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Heard.

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In these matters, the revision petitioner/plaintiff filed a suit as O.S.No.139/2006, seeking partition of plaint A to E schedule properties. Then the 2^nd defendant/Radhamma filed a counter claim contending that plaint A schedule is not partible since she acquired title over the same on the strength of a gift deed of the year 1971. When the matter was listed for evidence, plaintiff was absent. Accordingly, suit dismissed for default and counter claim allowed, declaring right of Radhamma over plaint A schedule property.

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Thereafter, the plaintiff/revision petitioner filed

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petition to set aside dismissal of the suit in time. Later after a long delay of 345 days, another petition also filed to set aside

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CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014

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6

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the decree passed in the counter claim. The trial court dismissed all those petitions. Against which appeals also preferred before the District Court. The same were also dismissed. Now CRP Nos.20/2024 and 24/2024 have been filed challenging dismissal of setting aside the ex parte decree passed in the counter claim and dismissal of the delay petition there in. Similarly, CRP No.43/2024 has been filed to set aside the dismissal of the suit.

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In these matters, it appears that plaint schedule items are A to E schedule properties. Out of which, A schedule alone is absolutely claimed by Radhamma on the strength of 1971 document, executed by the father at the time of her marriage. Even though the plaintiff has a contention that the same is a sham document, it is discernible that the same document is of 35 years of age and suit was filed in the year 2006. The trial court as well the appellate court refused to set aside the counter claim decree, after holding that 365 days delay could not be condoned;,

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CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014
7

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after discussing these matters in detail and finding fault with the medical certificate produced to substantiate the delay. On perusal of the records, it is discernible that the plaintiff who filed petition to set aside dismissal of the suit failed to seek the relief to set aside the ex parte decree in the counter claim, though the same is a fact known to the plaintiff on the date of filing petition to set aside dismissal of the suit. Hence, there is no justification to consider the delay of 345 days as rightly found by the trial court and the first appellate court.

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As far as plaint A schedule property is concerned, the same is one covered by 1971 gift deed. Therefore, the challenge against the said verdict (decree passed in the counter claim) need not be interfered. Therefore, CRP Nos.20/2014 and 24/2014 stand dismissed.

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But it is absolutely necessary to allow partition of plaint B to E schedule properties and for which dismissal of the suit shall be set aside in the interest of justice, taking note

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CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014
8

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of the fact that petition to set aside the dismissal of the suit

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filed in time. In view of the above, dismissal of O.S.No.139/2006 stands partly set aside. That is to say, dismissal of the suit seeking partition of plaint B to E schedule properties stands set aside and the suit stands restored to that extent while confirming dismissal of the suit in relation to plaint A schedule property covered by the counter claim decree.

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Accordingly, the matter remitted back to trial court to consider the reliefs sought for in relation to plaint B to E schedule properties as per law.

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Insofar as OP(C) No.1776/2014 is concerned, Ext.P6 order is under challenge. The grievance of the petitioner, who is the petitioner in the CRP, is that without following the procedure, property covered by the gift deed was ordered to be measured by the commissioner to give the same for the separate possession of Radhamma. In order to address the grievance of the petitioner in the matter of any

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CRP NOs. 20, 24 & 43 OF 2014
& OP(C) NO. 1776 OF 2014

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9

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anomaly, execution petition is relegated back to the stage of appointment of commission with direction to the trial court to consider the commission application, afresh, after giving opportunity to the petitioner to file objection and then proceed with the trial. Interim stay in all these matters stand vacated.

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Holding so, these matters stand disposed of as above. Registry is directed to forward a copy of this judgment to the Principal Sub Court, Kollam, for information and

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further steps.

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Sd/A. BADHARUDEEN JUDGE

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nkr

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CRP NOs. 20, 24 & 43 OF 2014 & OP(C) NO. 1776 OF 2014

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APPENDIX OF OP(C) 1776/2014

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF E.P.NO. 413 OF 2011 IN
OS.NO. 139 OF 2006, SUB COURT, KOLLAM
DATED 26-7-2011

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EXHIBIT P2 TRUE COPY OF THE B DIARY DATED NIL
EXHIBIT P3TRUE COPY OF THE APPLICATION, E.A.NO.
131 OF 2014 IN E.P.NO. 413 OF 2011 IN
O.S.NO. 139 OF 2006, SUB COURT, KOLLAM
DATED 23-1-2014

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EXHIBIT P4TRUE COPY OF THE APPLICATION, E.A.NO.
132 OF 2014 IN E.P.NO. 413 OF 2011 IN
O.S.NO. 139 OF 2006, SUB COURT, KOLLAM
DATED 23-1-2014.

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EXHIBIT P5TRUE COPY OF THE OBJECTION TO EXT. P4
FILED BY THE RESPONDENT DATED 28-6-2014
EXHIBIT P6TRUE COPY OF THE COMMON ORDER IN
E.A.NO. 131 OF 2014 AND E.A.NO. 132 OF
2014 IN E.P.413 OF 2011 IN O.S.NO. 139
OF 2006, SUB COURT, KOLLAM DATED 1-7-
2014.

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RESPONDENTS EXHIBITS : NIL

Leela v. Subhadra

Case brief

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What did the court decide?

Leela v. Subhadra

Case brief

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